l^wbm S. Slaubc QJoUedintt 1948 ilcmnnal (^ift of tlje B'tubcnta of tljc GJorncU SJam grliool CORNELL UNIVCRSITY LIBRARY 76 095 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924069476095 TRAINING FOR THE 'PUBLIC PROFESSION OF THE LAW HISTORICAL DEVELOPMENT AND PRINCIPAL CONTEMPORARY PROBLEMS OF LEGAL EDUCATION IN THE UNITED STATES WITH SOME ACCOUNT OF CONDITIONS IN ENGLAND AND CANADA BY ALFRED ZANTZINGEB, REED BULLETIN NUMBER FIFTEEN NEW YORK CITY 522 FIFTH AVENUE 1921 D. B. UPDIKE ■ THE MERRYMOUNT PRESS • BOSTON ANALYSIS OF CONTEiNTS PAGE Preface : Educational Surveys and Social Progress xiii By Henry S. Pritchett, President of the Carnegie Foundation Introduction 3 PART I. COMPARATIVE DEVELOPMENT OF LAW AND THE LEGAL PROFESSION IN ENGLAND, CANADA AND THE UNITED STATES CHAPTER I. England 11 1. Maintenance of Professional Control over Legal Educa- tion Grounded in the Nature of English Common Law 11 2. Organization of the English Legal Profession 14 3. Opportunities Provided in England for Systematic In- struction in Technical Law 19 4. Distinguishing Characteristics of the Present English Sys- tem 22 II. Canada 25 1. Organization of the Canadian Legal Profession 25 2. Legal Education in Canada 26 3. General Characteristics of the Canadian System 28 III. The United States 29 1. Relation of American to English Law 29 2. Influence of our Political Philosophy upon the Organiza- tion of the Legal Profession 35 3. Relation of the Public Profession of the Law to Govern- mental Organization in General 41 4. Efl«ct of Weakened Bar Admission Requirements upon the Development of Law Schools 44 5. General Points of Resemblance among American Law Schools 46 6. Points of Dissimilarity among American Law Schools 50 CONTENTS 7. Origin of the Distinction between Full-time and Part- time Law Schools 54 8. Evil Effects of Combining Radically Different Types of Preparation with the Theory of a Unitary Bar 57 9. Actual Educational and Social Differentiation of a Technically Unified Profession 60 10. General Characteristics of American Law and Methods of Recruiting a Legal Profession 61 PART II. THE ORGANIZATION AND RECRUITING OF THE LEGAL PROFESSION IN THE UNITED STATES, IRRESPECTIVE OF THE INFLUENCE EXERTED BY LAW SCHOOLS IV. Authorities Admitting into the Practice of the Law 67 1. Location of the Admitting Power at the Close of the Colonial Period 67 2. Development of the Decentralized Systems of Admission prior to 1890 68 3. Decadence and Revival of the Principle of a Central Ad- mitting Authority 70 V. Control of Judicial Admitting AuTHORrriEs by Local Bars and State Legislatures 74 1. Early New England County Bar Systems 74 2. Increasing Legislative Control over the Process of Ad- mission 77 VI. Early Bar Admission Systems. A Graded Profession Based upon Long Periods of Preparation 79 1. A Graded Profession 80 2. Long Periods of Preparation 82 VII. Extinction and Revival of Educational Requirements for Admission 85 1. Attack on the Requirement of a Prescribed Period of Preparation 85 CONTENTS V 2. Climax of the Democratic Movement 87 3. Revival of Interest in Educational Standards 90 VIII. Development of Machinery for Examining Applicants 94 1. Early New England Examination System 94 2. Early Virginia Examination System 96 3. General Reliance upon an Inadequate Examination System 98 4. Unpaid Boards or Standing Committees 100 5. Central Examining Boards Financed out of Applicants' Fees 102 PART III. RISE AND MULTIPLICATION OF LAW SCHOOLS IX. Law in Anglo-American Colleges and Universities PRIOR TO THE REVOLUTION 107 1. Part Played by the English Universities in the Training of Lawyers 107 2. Blackstone and his Influence upon this Country 110 3. Law in the Colonial Colleges 112 4. The Problem presented after the Revolution 115 X. Jefferson's Work in Virginia and Kentucky 116 1. William and Mary College 116 2. Transylvania University 118 3. University of Virginia 118 XL University Experiments in the Middle Atlantic States 120 1. Columbia College 120 2. University of Pennsylvania 122 3. University of Maryland 123 4. Untimely Nature of these Experiments 126 vi CONTENTS XII. Early Private Law Schools 128 1. The Litchfield Law School 128 2. Imitators of the Litchfield School 132 XIII. The New England Colleges 134 1. Non-professional Law, prior to the War of 1812 134 2. The Harvard Law School prior to the Advent of Judge Story 137 3. The Yale Law School 140 4. Reorganization of the Harvard LawSchool under Story 142 XIV. Spread of a Standardized Type of Law School 151 1. Additional Schools started prior to the Civil War 152 2. General Similarity of these Early Schools 154 XV. Establishment of the Law Degree 160 1. The Bachelor of Arts (A.B. or B.A.) and its Deriva- tives 160 2. Higher Non-professional Degrees 161 3. Professional Degrees other than in Law l62 4. Early Experiments with Law Degrees 164 5. The First Degree in Law as Finally Developed 169 XVI. Length of the Degree Course. Failure of Higher De- grees IN Law 170 1. Length of the Degree Course in Academic Years 170 2. Unreliability of this Method of Appraising the Degree 172 3. Higher Degrees versus a Lengthening of the Period for the First Degree 175 4. Handicaps under which the Law Scho6ls operated 178 XVII. Organization and Financial Support of the Teaching Staff 182 1. Number of Instructors 182 2. The Dominant Type of University Law School 183 189 CONTENTS vii 3. Aggregations of Professional or Vocational Schools 187 4. Independent Law Schools with Power to Confer De- grees XVIII. Multiplication of Law Schools and Law School Stu- dents AFTER THE CiVIL WaE 193 1. Number of Law Schools 193 2. Relative Attendance at Individual Law Schools 195 3. Aggregate Number of Law School Students 198 PART IV. RISE OF A NEW LEGAL PROFESSION AFTER THE CIVIL WAR ORGANIZED IN BAR ASSOCIATIONS XIX. Selective Bae Associations 203 1. Local and State Bar Associations 205 2. Formation and Early Struggles of the American Bar Association 207 3. Principal Elements of Weakness in the Bar Association Movement 212 4. Valuable Services rendered by the New Profession 221 XX. The Problem of Professional Organization 225 1. The Basis of Professional Selection 225 2. Union of Bar Associations 3. Relations between the Professional Organizations and the Law Schools 232 4. An Inner Bar distinguished from the General Body of Practitioners 237 PART V. CHANGES IN BAR ADMISSION REQUIREMENTS INCI- DENT TO THE RISE OF LAW SCHOOLS AND OF BAR ASSOCIATIONS XXI. Privileges obtained by the Law Schools prior to 1870 243 1. Recognition of School Work in States Requiring a Definite Period of Preparation 243 iii CONTENTS 2. Exemption of Law School Graduates from Bar Examinations 248 XXII. Reaction of the New Legal Profession against Law School Privileges 254 1. Professional Criticism of Law Schools 254 2. Crediting of Law School Work toward the Prescribed Period 256 3. New York Controversy 259 4. Practitioners' Examinations versiis Admission on Di- ploma 263 PART VI. EFFORTS TO BROADEN THE TRAINING OF LAWYERS DURING THE FIRST QUARTER CENTURY AFTER THE CIVIL WAR XXIII. Purpose and Content of Legal Education 273 1. Vitality of Legal Education between 1865 and 1890 273 2. Breadth versus Depth. General Discussion 275 3. The Three Component Part's of an Ideally Complete Preparation : Practical Training, Theoretical Know- ledge of the Law, General Education 276 XXIV. Inadequate Pkovision for Practical Training 281 XXV. The Field of Legal Knowledge 288 1. The Law of the Local Jurisdiction 288 2. The Generalized Law of the Country as a W^hole 295 3. International Law and Jurisprudence 299 4. Law School Instruction in Government 302 XXVI. Optional and Elective Courses 304 1. Optional Additions to the Regular Curriculum 304 2. The Elective System 306 XXVII. General Education : The Lower Schools 312 1. Purpose of General Education 312 2. Responsibility Delegated to the Lower Schools 317 CONTENTS XXVIII. General Education : The College 1. Position of the College in the American Educational Scheme 323 2. Modification of the Degree Requirements 328 3. Origin of the Combined Arts-Law Course at Colum- bia 333 PART VII. EFFORTS TO INTENSIFY THE TRAINING OF LAW- YERS DURING THE FIRST QUARTER CENTURY AFTER THE CIVIL WAR XXIX. Hakvaed's Contribution to Educational Reform 1. Distinctive Aim of the Harvard Law School 2. Analysis and Systemization of the Law 345 XXX. Thorough Covering of a Limited Field 354 1. Increased Amount of Instruction Offered 354 2. Establishment of Annual Written Examinations 356 3. Distribution of the Work among the Teaching Force 361 4. Reshaping of the Classroom Schedule of Hours 363 XXXI. Conduct of Classroom Instruction. The Case Method AND Productive Scholarship 369 1. Lingering Misconceptions in regard to the Case Method 369 2. Histoiy of the Case Method 371 3. Case-Method versus Textbook Schools 881 4. Productive Scholarship 385 PART VIII. RECENT DEVELOPMENT AND PRESENT CONDI- TION OF LEGAL EDUCATION XXXII. Developments between 1890 and the War with Gee- many 391 1. A Period of Mechanical Imitation 391 X CONTENTS 2. Differentiation between Institutions demanding the Entire Time and only Part of the Time of their Students 394 XXXIII. General Relation of the Law School to the Pro- fession AND THE State 403 1. Unsuccessful Efforts to differentiate the Profession without Reference to Law Schools 403 2. Unsuccessful Efforts to maintain a Unitary Bar in Face of the Actual Divisions produced by Different Types of Law Schools 406 3. Development of Important Variations among Law Schools 410 4. Four Broadly Distinguished Types of Law Schools 414 5. Conclusion 416 APPENDIX § I. Lists of Law Schools 423 A. Chronological List of liistitutions offering Resi- dential Instruction in Professional Law, omitting Private Law Schools not conferring Degrees 423 B. Private Law Schools not conferring Degrees 431 C. Contemporary Law Schools 434 § II. Statistical Tables 442 1. Basic Figures 442 2. Lawyers compared with Physicians and Clergymen 442 3. Law Schools compared with Medical and Theologi- cal Schools 443 4. Law School Students compared with Medical and Theological Students 443 5.Xaw Graduates compared with Medical and Theo- logical Graduates 443 6. Law Schools Started and in Operation at Different Periods 444 CONTENTS xi 7. Law Schools classified by Type of Organization 445 8. Law Schools classified by States 446 9. Law Schools classified by Amount of Time required for the lowest Degree 448 10. Law School Students classified by Amount of Time i"e- quired for the lowest Degree 449 11. Competition for Students among Law Schools prior to 1840 450 12. Attendance at Individual Law Schools prior to the Civil War 451 13. Attendance at Six Largest Law Schools since the Civil "War 452 § III. Eaely Law School Curricula 453 I IV. Tables Illustratink Mechanistic Development at Har- vard 457 A. Year-hours of Instruction Announced, Actually Given, and Required for the Degree 457 B. Year-hours of Instruction Allotted to Separate Subjects 457 C. Year-hours of Instmction Offered to and Required to be taken by Each Class 459 § V. Bibliography and Acknowledgments of Assistance Ren- dered 460 A. General Acknowledgments 460 B. Law Schools 460 C. Bar Admission Rules 462 D. Information in regard to Legal Education contained in the Reports of the United States Commissioner of Edu- cation 463 E. Information in regard to Legal Education contained in Reports of Associations 466 F. Legal Education and Requirements for Admission to Legal Practice Outside of the United States 468 INDEX 471 EDUCATIONAL SURVEYS AND SOCIAL PROGRESS IF organized society is to continue, the great mass of human be- ings who compose it must be fed and clothed and warmed and transported. In order that these fundamental needs may be met, certain human forces, many of them of world-wide sweep, must be al- lowed fs^r play to work in accordance with economic law. In order that these fundamental processes shall go on, it is essential that the general body of individuals in the civilized world shall be educated, at least to the point where they apprehend the presence of the fundamental economic laws, the methods of cooperation under which their economic needs may be met, and their right both to freedom and to justice. Formal education, therefore, has become throughout the civilized world the universal business of society, and next to those fundamental processes by which men are fed and clothed and warmed, the business of education is the chief business of society. In the last twenty years there has been a vast expansion of the ma- chinery of formal education. Not only is the eflfbrt made to educate the entire body politic in the elementary knowledge essential to the economic and political safety of the individual, but the institutions of formal education have so expanded as to cover the whole field of human knowledge and of social relations. As a result, the public systems of education in all civilized countries have become enormously com- plex, in many cases extremely superficial, and in the great majority of cases expensive beyond aU expectations. Even in a country so rich and so prosperous as the United States of America, the public school sys- tem is to-day in danger of breaking down unless its content shall be brought back once more to a more simple, sincere and thorough basis, and unless this process shall be accompanied by a corresponding reduc- tion in the cost of public education. This growing strain has shown itself in the United States in the past fifteen years in many ways, but perhaps in no more striking way than by the inauguration of a great number of what have been called educational surveys. These surveys, or studies as they may more properly be called, have been carried out in some cases by an individual, in other cases by a group chosen on the basis of assumed expert knowledge. The nature xiv PREFACE of the surveys or studies has varied enormously. In some instances they have been desultory examinations of an institution, or of the edu- cational system of a community or of a state. In other cases the studies, while admittedly fragmentary and incomplete, have nevertheless dealt successfully with the essential questions involved- In still other cases they have been not simply surveys, but serious attempts to procure first of all the facts, secondly to study these facts critically, and finally to marshal them in such form that they shall be available to thos^ in the teaching profession, to those charged with its supervision, and to the gen- eral public for whose progress and development the school system exists. The studies which the Carnegie Foundation has undertaken to con- duct, through its Division of Educational Enquiry, have attempted to deal in this serious and detailed fashion with the questions to which its studies have been devoted. There was issued in June, 1920, a vol- ume entitled "The Pi'ofessional Preparation of Teachers for American Public Schools." The volume was based upon a detailed examination of the normal schools of a single typical state. The accumulation of the necessary information, its discussion and presentation, occupied some six years, and involved, first and last, the cooperation of scores of per- sons connected with the universities, normal schools, departments of education, or related in one way or another to the problems under dis- cussion. This volume, which dealt not only with the organization but with the cumculum of the normal schools, has been received with hearty interest by those engaged in the work of education, and partic- ularly by those concerned with the training of teachers. With the cor- dial cooperation of the men and women in the normal schools and teachers' training institutes, there is good hope that the study may lead to a forward step in the better education of the teacher and in a higher appreciation of his work, and, what is more important, may lead also to the thorough consideration of the courses of study and of the methods by which teachei-s are to be prepared and the form of admin- istration under which they can best do their work. The present bulletin on the " Training for the Public Profession of the Law " is in like manner not a sui-vey. Its preparation has occupied ei^t years. During part of this period the excitement and stress of war delayed to some extent the preparation and publication of the vol- PREFACE XV ume. But in any case a report conceived in the sense in which this re- port has been prepared is in only partial measure dependent upon the date of its publication. It represents not simply a criticism of the ex- isting law schools, and of present day tendencies in the training of the lawyer for his profession, but it undertakes to develop in a scholarly way the history and progress of American legal education. It describes the differences in conception that have existed from one period to an- other During the eighteenth century there was in England no institutional instruction keyed to the special needs of professional lawyers. Black- stone's pioneer lectures on the common law at Oxford, to use his own words, were intended for "gentlemen of all ranks and degrees'' — or, in modern language, constituted a step toward "the broadening of the college curriculum." The Inns of Court had long ceased to hold their famous "moots." A statutory requirement that no attorney or solicitor could have more than two articled clerks — a heritage of ancient efforts ' Compare Chapter VI, sec. 2. 20 ENGLAND to limit the size of the profession — prevented the development of private law schools. The only training required of any one was the serving of this clerkship for five years; the final examination by the judge seems to have been purely perfunctory. This rudimentary system at least gave some assurance of practical experience among the miscellaneous prac- titioners. For the barristers there was not even this. Not only could the requirement of "keeping terms" in the Inns be satisfied, as at present, by eating a certain number of dinners, but in addition the tests im- posed at that time were a hoUow sham. The system served to make ad- mission to the higher branch of the profession a matter merely of birth and money. In individual cases great lawyers, though not great demo- crats, were produced by this means, for three reasons : In the first place, the same social and economic standing that made it possible to enter the Inns made possible a university career as well, and thus brought into the bar men of broad general education. In the second place, those who took their profession seriously secured practical experience on their own initiative, then as now, by associating themselves with an older barrister. They either "read in chambers" under him before they were called to the bar, or they "deviled" for him subsequently. Finally, the custom, established about the middle of the eighteenth century, that the solicitor rather than the client chooses the barrister for the particular case, has been a powerful factor in developing high stand- ards of advocacy in England. The solicitors constitute as it were a con- tinuously operating examining body, which picks out of the general mass of barristers the smaller group to whom briefs are actually en- trusted. The first step toward providing systematic legal instruction occurred in 1833, when the Incorporated Law Society established courses of lec- tures. When, subsequently, this society was entrusted with full respon- sibility for solicitors, and when the Council of Legal Education inau- gurated similar courses for prospective barristers, the resemblance of both bodies to the regular universities was maintained. For although, as already pointed out, the older universities, historically and primarily, are examining bodies, they came also to offer instruction themselves in addition to that provided by the residential colleges. Ti-aditionaUy, however, in Oxford and Cambridge, this university instruction has been in the nature of opportunities which the student is free to accept or to reject. He is required only to pass the examinations, for which he may prepare himself as he chooses. The instruction provided by the Law SYSTEMATIC INSTRUCTION IN THE LAW 21 Society and the Council was naturally organized in a similar manner. The Law Society has supplemented its London school by offering cor- respondence courses, and by making grants to local societies that con- duct classes in provincial cities, but neither in London nor in the prov- inces are students required to attend these schools or classes. The field is thus open for the regular universities to offer similar opportunities. Several of them have done so — the newer universities usually in co- operation with the local law society — and have developed their own system of law examinations, on the strength of which they confer their own law degrees. These degrees are not recognized by the professional examiners, however, except as to such parts of a lawyer's education as traditionally belong to the universities. That is to say, the Law Society will exempt the holder of a university law degree, not only from its pre- liminary examination, but also from that poi'tion of its intermediate examination which, like Blackstone's lectures, gives a general elemen- tary survey of the law. The Council accords a similar exemption in the case of Roman Law. Both societies, however, determine the attainments of candidates in technical law solely on the basis of their own final ex- aminations, irrespective of whether any systematic training has been secured either in the universities or in their own non-degree-conferring institutions. Under this system the student who cherishes no higher ambition than to pass the professional examinations finds little incentive to enter a law school or to take a university law course. The period of training under a practitioner — positively required of those intending to be solicitors, and customarily pursued by prospective barristers — has re- mained the backbone of the educational system. The formal school work is considered as little more than an aid to this, and is usually taken, if at all, at the same time. It cannot be so highly developed as if it were taken by students who were devoting to it all their time. Yet the pro- fessional examinations themselves cannot well go beyond the stand- ards of theoretical knowledge obtainable in the schools. Hence these tf examinations are not so severe but that — with the aid of crammers — they can be passed by students who omit the school or university work altogether. The number of students attending the schools or classes of the professional societies, or taking law degrees in the universities, is accordingly small compared with the total taking professional exami- nations. The standard of honor examinations in law at Oxford and Cambridge is high, primarily because "keeping terms" in the Inns, dur- 22 ENGLAND ing university residence, is a mere formality. Candidates for the bar can thus devote their entire time to their university law studies before they begin their reading in chambers. Here again, however, greater social and professional prestige attaches to academic honors obtained in other fields. The most capable men are apt to postpone their law studies until after they have left the university. In general, institu- tional instruction in technical law, absolutely non-existent when Eng- land lost her American colonies, has not yet been organized in a satis- factory manner.^ 4. Distinguishing Characteristics of the Present English System To summarize the contrast between Continental Europe and England: Continental law is the Roman law of the universities, as modified by native law. The universities have accordingly been made responsi- ble, at least in the higher branches of the profession, for both the gen- eral and the technical education of lawyers, so far as this can be pro- vided in systematic form appropriate to academic institutions. The remainder of a lawyer's technical training, which can best be provided unsystematically thrpugh contact with a practitioner, is secured in this way, and usually after the completion of the university work. These universities were originally self-perpetuating guilds or trade unions. They were semi-independent elements in a so-called "pluralistic" or- ganization of mediaeval society, in which it was not clear where ulti- mate authority was to be found. Within each nation, however, a slowly developing unitary state finally established its authority over all parts of its territory and over the vested privileges of all individuals, classes and corporations. As part of this general process. Continental univer- sities have been brought under state control. The integrity of the state is thus in no wise threatened by their dominant position in the making of the law and of lawyers. English law, on the other hand, is primarily na-^ve law, the product of its own practitioners, with a relatively slight Romanic infusion. Practitioners, accordingly, under Parliament, have remained in ulti- mate control of the system by which the legal profession is recruited. They determine the amount and type of the entire education, general and technical, systematic and practical, that lawyers are required to secure; and they test the individual's possession of the requisite quali- 1 Compare Chapter IX, sees. 1 and 2. CHARACTERISTICS OF PRESENT SYSTEM 23 fications. To a very considerable extent these practitioners still consti- tute, and indeed have increasingly become, self-perpetuating guilds of the mediaeval university type. Since the making of law and the admin- istration of justice are primary functions of political organization, Eng- land may thus be said not to have emerged so fully as have the Conti- nental nations from the primitive " pluralistic" phase of government. The possible latent danger to political unity is thought to be met, how- ever, by the fact that the particular barristers who are elevated to the bench are picked out by a minister of the Crown, responsible to Par- liament; and that Parliament possesses and exercises the power to change the practitioner-made law by its own statutes. In accordance with this tradition of the ultimate responsibility of lawyers for their own educational qualifications, the English univer- sities have not only been denied any control over the admission of a law student to practice. They have not even been made directly re- sponsible for providing any portion of his education, in which they participate only as volunteer agencies. In the field of general education they offer much more than the practitioners demand. Their graduates in arts constitute a broadly trained inner circle or educational aristo- cracy in each of the two branches into which the profession is, for his- torical reasons, divided. In the field of technical legal education they also offer instruction equally with institutions supported by the prac- titioners themselves. The conception, however, of institutional instruc- tion in technical law as an essential part of a lawyer's education, whether given in a university or whether given elsewhere, has never thoroughly reestablished itself in England since the decay of the ori- ginal Inns of Courts. The pedagogical doctrine that this should con- stitute a distinct intermediate phase of his preparation, to be entered upon after he has completed his general education but before his prac- tical training begins, is stiU more foreign to English thought. As a rule, an Engy.sh student, having secured such general education as he thinks worth while or can afford, proceeds directly into a lawyer's office. Sys- tematized institutional education in the law is then an optional over- lay of which he usually avails himself, if at all, at the same time. Indi- rectly, the universities themselves are largely responsible for the handi- caps under which legal scholarship is prosecuted to-day. Oxford and Cambridge provided, in their own field, models of educational laissez- faire. The following of these models by the professional societies, with the office practitioner substituted for the college tutor as the core of the 24 ENGLAND educational system, has resulted in a small attendance, and — judged by the highest American standards — not very intensive work, both in the professional schools and classes and in the university law courses. CHAPTER II CANADA 1 . Organization of the Canadian Legal Profession ON this side of the water, the fact that Canada came under Eng- lish rule only a few years before the older American colonies secured their independence was responsible for mutually independent lines of development in the Dominion and in our own country. Eng- land found the Romanized French or civil law in Canada in the hands of three technically distinct types of practitioners: avocats, notaires and arpenteurs or land surveyors. In addition to these, she brought in her own barristers, attorneys and solicitors. There was no rule, however, against the exercise of all these functions by the same individual; and in a small frontier community a single type of lawyer, engaged in gen- eral practice, naturally resulted. In 1785 these general practitioners were divided, for the first time, into two mutually exclusive branches. Notaries constituted one branch; all remaining recognized practition- ers, the other. Future members of each branch were to be admitted after five years clerkship and examination before the Chief Justice or any two judges of the district Courts of Common Pleas. The ordi- nance applied to the Province of Quebec, which then included the pres- ent Ontario, and was an obvious attempt to reconcile the existing Eng- lish system with the pei-petuation of notaires, necessitated by the French civil law. In the present Province of Quebec, where except as to crim- inal matters the civil law is still in force, this division of the profes- sion into the two branches of civil-law notaries and an otherwise com- pletely unified "bar " has been retained to the present day. The former practice conveyancing; the latter combine the remaining functions of English barristers (counsellors) and solicitors (attorneys). In the other Canadian provinces the introduction of the English common law naturally resulted in attempts both to maintain the dis- tinction between barristers and mere attorneys, and to construct for both branches a system of professional control analogous to that exer- cised by the English bar. This development occurred in Upper Canada (the present Province of Ontario) in 1797, when the existing practi- tioners were authorized by statute to form themselves into a Law Soci- ety. Under the inspection of the judges as visitors, this society was em- powered to adopt i-ules governing both branches of the profession, de- 26 CANADA fined as "barristers" on the one hand, and as "attorneys or solicitors" on the other. In 1822 the society was incorporated. At present a similar corporation, under various names, exists in every Canadian province.^ In Quebec, it possesses jurisdiction over the undivided "bar," which does not include civil-law notaries. Elsewhere, the technical distinction between barristers and solicitors (as in confoi-mity with English usage they are now termed) has been preserved. At one time the barrister element in the Ontario society displayed a spirit resembling that of the Elizabethan bar and expelled the solicitors; but now these corpora- tions are everywhere in full control of both branches of the profession, subject to statutory requirements of a period of office clerkship. The dis- tinction between the two branches, however, is little more than nominal. Any solicitor may also become a barrister, either at once or after an intervening period of practice. The development may be summarized differently, according as we approach it from the point of view of the British Empire, or from that of Canada alone. From the point of view of the British Empire, all Canadian courts may be regarded as lower courts, and these Canadian professional societies exemplify the general English tendency both to obliterate distinctions between lower-court practitioners and to trans- fer their control from the judges to their own professional organiza- tions. This tendency naturally exhibited itself earlier in the plastic institutions of a sparsely settled colony than in the more rigid social organization of the mother country. From the point of view of Canada as a self-governing body politic, the professional society represents rather the unitary profession appropriate to a new community, organ- ized on the traditional lines of the English bar, but by statute instead of by prescriptive right. The attempted further distinction between barristers and solicitors will then be seen not as a genuine original division, that is now in process of being obliterated. Rather, it was an extraneous feature of the contemporary English system, that failed to take root because it was never suited to conditions in America. 2. Legal Education in Canada The Canadian admission system is accordingly a mere simplification of the existing English system. As a natural consequence the educational system has been organized in the same way as the English, in these three 1 Compare Chapter V, sec. 1. LEGAL EDUCATION 27 essential particulars. In the first place, it calls for an extended period of service as clerk to a practitioner — never less than three years, and longer in the case of those not possessing a university degree in arts or in law. In the second place, the Canadian universities, like the English, provide opportunities for general education in excess of that required by the professional societies preliminary to beginning the clerkship. A distinction of some practical professional importance thus obtains between practitioners who are university graduates and those who are not; though it should be noted in this connection that the expense of obtaining a legal education, coupled with the longer clerkship required of non-graduates, makes the Canadian bar as a whole more exclusive than our own, and thus narrows the chasm between these two classes. In the third place, such systematic instruction in technical law as is provided is intended, as in England, for those who are simultaneously serving their office clerkship. Class sessions are regularly held in the early morning and late afternoon. To repeat the figure already used, the instruction is an overlay upon, rather than a preliminary to, the student's practical training, and hence cannot be given the same theo- retical development that is possible and likely — for good or for bad — when professors command the entire time of their students. Such differences as exist between the Canadian and the EngHsh sys- tems of legal education are subordinate to the above essential points of similarity, and concern principally the respective roles played by the professional societies and by the universities in providing systematic instruction. In general, one agency or the other operates alone in each province, instead of both concurrently as in England. In the Prov- ince of Ontario the strong old Law Society of Upper Canada, which has occupied its own building, Osgoode Hall, since 1832, inaugurated lectures in 1855 and a law school in 1873.' Since 1889, by a quite re- markable departure from prevailing custom, attendance at this school has been compulsory upon all who desire to be admitted to the prac- tice of the law. In the remaining provinces, on the other hand, the uni- versities have secured a somewhat stronger foothold than in England. The professional societies are disposed not to offer instruction when a local university is willing to undertake the work. In Quebec the impor- tance of an adequate knowledge of the French civil law is emphasized by a requirement that law students shall attend a local university, and that a law professor of each university shall be placed on the profes- 1 Compare Chapter VIII, sec. 1. 28 CANADA sional examining boards. In Nova Scotia and New Brunswick the local universities are favored in a different way. In return for representa- tion of the professional societies on the university examining boards, students who secure the university law degree are exempted from the professional examinations. This participation of the regular admit- ting authorities in the tests leading to the degree, and the fact that the privilege is enjoyed in each province by only a single university, distinguish this arrangement from the justly discredited "diploma privilege" possessed by certain American law schools. 3. General Characteristics of the Canadian System These concessions made to the universities in particular provinces do not, however, aflFect their general subordination to the practitioners. The Canadian system of legal education and admission to the bar, like the English, is strong on the side of practical training and professional spirit. Its weakness lies in the obstacles that it places in the path of legal scholarship, with all that this means for the future growth of the law. Practicing lawyers with their necessary and proper respect for prece- dent tend inevitably to look backward rather than forward. Ultra-con- servative practitioners, through their control of the student's examina- tions, check the development of the curriculum, at the same time that through their control of his working hours they prevent him from doing justice to the curriculum as it already is. Finally, Canada has not solved the fundamental difficulty that besets all efforts to adapt the ancient profession of the law to modem ideals of popular self-government. No more than in our own country are these two demands of the demo- cratic state fully met : namely, that its lawyers shall be at once edu- cated specialists and yet not too far removed from the common people; that their course of preparation and conditions of admission shall be at once rigorous and yet not beyond the reach of the average man ; calculated to produce broadly and thoroughly trained experts, to whom clients can resort in full confidence that without undue delay or ex- pense they will be honorably and competently served, and yet provid- ing an opportunity to all elements of the community to be adequately represented in the lawyer class, privileged by law to exercise the pri- mary governmental function of administering justice. CHAPTER III THE UNITED STATES 1. Relation of American to English Law IN our own country, the political separation from England naturally suggested a corresponding break between English and American law. Except as regards the structure of government, however, the break in legal continuity that actually occurred was not by any means so complete as was probably then generally anticipated, or as is to-day commonly assumed by those without legal training. Our political law was formulated in our constitutions, state and federal, into codes that represented a blend of the governmental organization already enjoyed by us as English colonies with a theoretical principle derived from French philosophy. This was the famous doctrine of the separation of powers, which assumes, in the first place, that all governmental activ- ities can be classified under the three heads of executive, legislative and judicial ; and demands, in the second place, that these three powers shall be lodged in three corresponding departments of government, to be kept independent of one another so far as possible. In the discussion that attended the adoption of these constitutions, as well as in such instruction in our system of government as has since then been provided in our common schools, the constant reference to the legislature as the legislative or law-making organ of government led to a very natural misapprehension. Undoubtedly the bulk of our people, when the pro- cess of organizing the new government was completed, felt that the state legislatures and the federal congress made all the remaining law, and that the judges merely applied it in such controversies as arose. This naive confusion between the powers that our legislative bodies, under constitutional limitations, might exercise, and the powers that they actually have exercised, has persisted to the present. Citizens of foreign origin, coming from countries where the legislatures really do make the entire law, except as to subordinate portions of it that merely supplement the fundamental codes, are peculiarly liable to fall into this error. The misunderstanding, however, is by no means confined to them. It constitutes one of the reasons why the American public can be much more easily interested in securing legal reforms through ac- tion by the legislature, than through improvements in the quality of practicing lawyers and judges. 30 THE UNITED STATES The actual situation was and is quite different. Parliament, at the time we secured our independence, had reduced only a small portion of the old common or judge-made law of England to statutory form ; and our own legislatures did not at that time adopt, and except in a very few states have not since then adopted, comprehensive legal codes. The greater part of the law, accordingly, that the judges were to administer did not exist in native form. There was a period during which many judges tried to be "one hundred per cent American " and to decide each case according to their own pure light of reason, without dependence upon English precedents either of method or of substance. It was not long, however, before both the traditional method of English law- making, and much of the traditional content of English law devel- oped by this method, were restored to American law. Decisions came to be regularly reported. Judges revived the English custom of cau- tiously leaning upon precedents laid down in prior decisions, instead of deciding each case by itself. Finally, in view of the paucity of re- ported decisions in their own jurisdictions, they were obliged to look further for authority. They were driven to use the law of other Amer- ican states and of England itself. The already existing English law, mainly as it had been developed by English judges, but including also certain important acts of Parliament, a^ the whole existed prior to the Declaration of Independence — and in particular as it was accessible in the convenient form of Blackstone's Commentaries — came to be recognized as still in force in this country, in so far as it was appli- cable to local conditions and had not been subsequently modified by ourselves. In some states the judges introduced this law of their own accord, in the absence of legislative direction as to what sort of law they were to apply to controversies before them. In other states the legislature itself formally directed them to regard it as in force. By one or the other process the continuity of Anglo-American law was thus largely restored, so that together with England and its self-gov- erning colonies we now fonn part of 'one great common-law system, contrasted with the civil-law system of Continental Europe and Latin America. In each of our states the original common law is gradually being eaten away by local statutes that sometimes merely restate, but often also modify, principles of law enunciated by the courts. Local divergencies also exist in the chains of accumulating precedents that are recognized as authoritative by the courts themselves. Yet notwith- standing all this, the theoretical unity of the common-law system— AMERICAN LAW AND ENGLISH LAW 31 and the practicing lawyer's indefatigable search for prior authority — is carried so far, that if an English or Colonial case — even a con-tem- porary one — can be found which presents points of similarity to one arising in an American court, the American lawyer may appropriately bring this case to the attention of the judge, and the judge may appro- priately cite this foreign precedent as a ground for determining the rights of American litigants. Similarly, in English and Canadian courts American judicial decisions are cited. In the nature of things, however, recent foreign precedents are now rarely applicable to cases that arise under American law, modified as this ha.s been by our own local statutes and by long-established lines of local decisions. For practical purposes the unity of Anglo-American law may be said to consist of two features. In the first place the meth- ods by which it comes into existence are everywhere identical. Instead of being, like modern civil law, primarily a product of the legislature and as such binding upon the courts, it becomes law only to the extent that it is declared to be so by the judges. In making this declaration the judges are by no means free. They are bound both by their own prece- dents and by such legislation as has been enacted, whether in the form of statutes or of constitutional provisions. The confusion, however, both in precedents and in legislation, gives them very considerable latitude within which to determine what shall be and what shall not be regarded as law. This peculiar relation of common-law judges to legislation ob- tains even in those American states which have attempted to codify their entire law. It expresses itself not merely in the familiar form of declaring statutes unconstitutional, but also in a tendency to interpret legislation, of undoubted constitutional validity, in the light of old common-law precedents. This traditional right of the Anglo-American judge to determine the extent to which he will administer legislation, by appeal to author- ity older than this legislation, is of course not to be confused with the power possessed by all judges to supply omissions or to reconcile con- tradictions in the text of any particular legislative act, nor yet with the tendency of judges under any legal system to respect prior decisions in regard to matters within the scope of their authority. In accordance with a principle that operates universally in bureaucratic departments of government (among which courts of law may, with no disrespect, be classed), civil-law judges respect, in practice,decisions made by their pre- decessors. It is true that this has not ripened on the European Conti- 32 THE UNITED STATES nent into the rigorous English principle of stare decisis — the judi- cially formulated doctrine that a judge is bound to abide by the deci- sion of his predecessor, even though he may personally believe that the decision was wrong, and must leave it to the legislature to establish a better rule for the future. But even if it should so ripen, it would not affect the inherent subordination of the civil-law judge to all preexist- ing legislation. On the other hand, the extraordinary powers possessed by English and American judges, not only in litigation between indi- viduals but even as between individuals and the state, would obviously be increased in case they should throw over the doctrine of stare decisis and decide cases frankly on grounds of public policy. Similarly their independent powers of law-making are not abolished when — as an alternative method of remedying the confusion and the archaisms of judge-made law — legislatures enact comprehensive codes purporting to displace it. For from the point of view of common-law judges, the provisions contained in these codes do not become genuine "law" until they have been actually enforced by the courts in concrete cases. What our courts enforce is law, what our courts do not enforce is not law, irrespective of the moral or political obligation they may be under to make it so. The familiar epigram, "When a doctor makes a mistake, (» he buries it; when a judge makes a mistake, it becomes the law of the land," is a striking, if unsympathetic, way of expressing the final check which the judges possess upon the making of law in England and America. The second respect in which Anglo-American law may be said to con- stitute a unitary legal system is the prevailingly similar content of its widely scattered local branches. Necessarily, however, these branches have grown somewhat apart from one another, with the lapse of years. In so far as the diiferences between contemporary English and contem- porary American law are less marked than are the differences — easily exaggerated — between them and the similarly divided branches of civil law, the general i-esemblance is due to their historical continuity, as branches growing out of a common trunk, rather than to a continuing mutual interdependence. Because of their common origin, English and American law share in common certain great fundamental principles, unknown to the civil law. But because of the subsequent independent development of the law in the two countries since their political sepa- ration — and particularly because of the modifications effected in the judge-made law by the action of mutually independent legislative bodies AMERICAN LAW AND ENGLISH LAW 33 — it is not often that an American judge has before him a knotty point, for the solution of which, on the one hand, no American prece- dent can be found, and to which, on the other hand, an English prece- dent is strictly applicable. With substantial accuracy, accordingly, it may be said that our contemporary American law, although typically- English in respect to the process by which it is made, is English in its content only in the sense that its historical basis is found in the older English law, as this existed before we became a separate nation. We have developed our own lines of precedents, and our own statutes, which resemble those that make up the contemporary law of England mainly because two peoples of similar origin, attempting by similar methods to adapt an identical older law to the similar problems that confront them in modern life, are likely to reach similar results. The occasional use that English and American judges make of one another's decisions may from this point of view be regarded as mere imitations or borrowings, such as constantly occur also in the drafting of legis- lation. So far as concerns its content, then, Anglo-American law, as devel- oped in our own country, has pretty well split off from that of Eng- land. In addition, our system of government has exposed it to the danger of disintegrating still farther into separate systems of law for all the states of our Union. Each state has its independent courts and legislature, still responsible, in spite of the expanding jurisdiction of the federal courts, for the bulk of our law. We are in a much more un- favorable situation, in this respect, than our Canadian neighbors. Their Supreme Court, acting as a court of appeal from the provincial courts, standardizes the judge-made law of the Dominion, and the further right of appeal from Colonial courts to the judicial department of the Privy Council in England promotes unity, subject to legislative variation, in the law of the entire Empire. The Supreme Court of the United States, however, so far from possessing this general appellate power, does little more than add to our forty-eight state systems a forty-ninth body of law covering matters within the special jurisdiction of the federal government. This danger that American law might disintegrate into local frag- ments has, on the whole, been averted by the respect which the law- makers of each state accord to the law of other jurisdictions. In the domain of judge-made law, the decisions of other state courts, or of the Supreme Court of the United States, are more than mere guides. They 34. THE UNITED STATES are treated by the courts as possessing actual authority as precedents, subordinate only to that possessed by a well-established line of deci- sions in their own states. Much more commonly also than foreign de- cisions they are applicable to local cases. This is because our states, in closer contact with one another than with Europe, have had relatively similar problems to face, and because even in the field of legislation they copy freely from one another. Both their judge-made law and their legislation, accordingly, have been kept more or less similar. Thus we have managed to maintain something resembling a body of char- acteristically American law, the internal variations in which are less marked than is its general divergence from the law of England. Or, more accurately ,the history of Anglo-American law in this country may be sketched as follows : For a time, because of the character of our politi- cal organization, American law was actually split into local fragments. Subsequently, the field from which precedents were dravra was extended beyond the political boundaries of nation and state. By this means our law has not only been reattached to the parent trunk, but it has also been partially reintegrated. This method of counteracting the natural tendencies of our federal system of government is, however, at best a clumsy one that not only does not fully accomplish the result desired, but also introduces certain positive evils. Notwithstanding the respect paid by the judges of each state to the decisions from other jurisdictions, localized and mutually inconsistent lines of development have persisted. It follows that the large number of courts from which conflicting precedents may be drawn has served as much to course as to standardize the law in any particu- lar jurisdiction. The law of each state is more uniform with that of other states than it would have been had there been no [borrowings from these. But within itself it is also less coherent. In some ways, accordingly, the present condition of American law resembles that of European Continental law before university legal scholars substituted, for the varying and often arbitrary rules admin- istered by practitioners in the courts, their own more intelligible and more logically defensible system. One of the developments that will be traced in the following pages will be the efforts of certain of our own legal scholars to perform a similar service for the law of America. A body of generalized national law, deduced in a critical spirit from the best practices of the various courts, is being slowly built up by these schol- ars. Not corresponding in its entirety to the law as actually adminis- INFLUENCE OF OUR POLITICAL PHILOSOPHY 35 tered by the courts in any single jurisdiction, it does not fall within the strict technical definition of "law" that is traditionally current in England and America. It is not, that is to say, in itself "a body of rules enforced by the courts." It constitutes rather, from this point of view, a fund of theoretical doctrine, which, whether embodied in texts or in principles inculcated in practitioners in other ways, is often welcomed by the judges as a useful guide when, in their decisions, they are obliged to determine the actual law of their jurisdictions. In proportion as the judges can and do draw upon this fund of theory, the mechanical in- conveniences of our divided system of courts are thus more easily sur- mounted and the law of the separate jurisdictions is made more uni- form. From the broader point of view of Continental Europe, however, where rules formulated by legal scholars, whether or not they are en- forced by the courts, partake of the nature of genuine "law," we may define this scholarly product as a slowly developing body of national law, which, to the extent that it differs from the local law of the judges, is struggling for mastery with it. Should university law schools or other institutions in which this national law is being cultivated ever be accorded a recognized responsibility for the education and testing of applicants for admission to practice, exercised independently of the judges or of other practitioners, this will mean that the American state has recognized, or in the technical language of jurisprudence has "received," scholars' generalized common law in much the same way that their elaborated Roman law became the law of Continental Europe.^ 2. Injluence of our Political Philosophy upon the Organisation of the Legal Profession We are, however, a long way from any such fundamental change in our conception of law as that just suggested. Meanwhile control of those who are to practice what is still practitioners' law has naturally re- mained with the practitioners, here as in England and Canada. There are notable differences, however, in the way in which this conlSrol is organized. Our American system of bar admissions owes its present form, in the first place, to the manner in which English practitioners' control was exercised during the period when the thirteen original states were still English colonies ; and in the second place to the inde- 1 Compare Chapter IX, sec. 2 ; Chapter XI, sec. 1 ; Chapter XIII, sec. 4; Chapter XXV, sees. 1 and 2; Chapter XXIX, sec. 3 ; Chapter XXXI ; Chapter XXXIII, see. 3. S6 THE UNITED STATES pendent influence exerted by our own native legislation. The England of the seventeenth and eighteenth centuries provided, the traditional basis upon which our own organization of this branch of governmen- tal activities has been built. Our colonial and state legislative organs, however, have been prevailingly more responsive to popular demand that the special privileges enjoyed by professional lawyers in the ad- ministration of justice shall not be placed beyond the reach of the average man. This attitude has led us — on the whole, in increasing measure — to weaken or even to repudiate traditional features that Eng- lish and Canadians have come more and more to emphasize. At the time when America was colonized, admission to practice in English lower courts was granted by the judges. As soon, therefore, as our colonists abandoned the attempt — made in several colonies — to prohibit professional lawyers altogether, there was provided, by legis- lative process, the same method of admission to their local courts; for, from the point of view of the British Empire, all such courts, the high- est as well as the lowest, were subordinate to those at Westminster. In a few cases attempts were made, as in England, to limit attorneys to a specific number, and with the same lack of success. There was con- siderable variation as to the particular branches of the judicial organ- ization in which the power of admission should be lodged. A central- izing policy, for instance, was favored by the home government; and since the governor usually exercised judicial as well as legislative and executive powers, he accordingly sometimes appointed attorneys him- self. Usually, however, this was on the recommendation of a coui-t or judge, as in New Jersey to the present day. In whatever ways the systems introduced into the different colonies varied in detail, they aU consti- tuted, in this subordination of lawyers to the judicial power, a free adaptation of the home model for miscellaneous or lower practitioners. Some attempts were also made to construct an upper branch of the legal profession on the same basis, but to a considerable extent this element among the practitioners was represented by the existing English bar. English-born barristers could not ride on circuit to try cases in Amer- ica, but southern planters frequently sent their sons to England to secure a legal education and admission to the bar from the Inns of Court. Upon their return these constituted the social aristocracy of the profession. With the elimination of the English-trained banisters there were left to us only the judicially appointed or judicially admitted practi- INFLUENCE OF OUR POLITICAL PHILOSOPHY 37 tioners. As in England and Canada, the distinction between the terms "appointment" and "admission," to describe the selective function per- formed by the judges, represents merely a slight shift in the point of view. "Admission" came everywhere to be preferred in proportion as it was realized that these practitioners, not being limited in number, were not precisely governmental officials, but constituted rather a class or order, vested with special privileges in the administration of the law. The further step, taken first in Canada and later in England, of trans- ferring conti'ol over admission into this order from the judges to tlie practitioners themselves never received legislative sanction in this coun- try. During the Colonial period the ideal of professional independence operated in a difFerentway. These judicially admitted practitioners came to be regarded as themselves constituting "the bar." In portions of New England, and possibly in New York City, the judges permitted the bar of each county to exercise actual control over its own membership. In New England this practice, which resembles the method by which Eng- lish barristers seem originally to have secured their traditional privi- leges, survived the Revolution. An interesting relic of it is to be found even to-day in Connecticut in the control retained by its county bars over the moral qualifications of applicants. The institution of a self-perpetuating class, however, enjoying special governmental privileges, was entirely repugnant to American efibrts to build up unitary democratic states possessing paramount authority over what may be loosely described as feudalistic survivals. Our legis- latures, so far from sanctioning the control of admissions by those al- ready admitted, were only too ready to discharge this function them- selves, in the form of admitting individuals by special legislative act. In so far as they avoided this exercise of pure political favoritism, and recognized that the power of admitting lawyers to practice might better continue to be exclusively exercised by the courts, they did this because they regarded the judges as state oflicials, whose retention of this power therefore did no violence to the integrity of the governmental machine. The attempted development of a virtually independent bar, under cover of this judicial control, was contrary to the spirit of our developing institutions. The general tendency of our people has been in the op- posite direction of taking steps to prevent the judges themselves from becoming too independent, in their exercise of their admitting power as in other matters. Even so, the system of independent bar control might have lasted in New England longer than it did, had the bars 38 THE UNITED STATES exercised their control in a broader spirit. The requirements they exacted for admission to their privileges were in some cases so severe as to justify the suspicion that they were more interested in fostering their own monopoly than in serving the state. The reaction against Federalist politicians was a factor in inducing the legislatures to sweep away the entire system. Since then the power of admitting lawyers to practice has been uni- versally regarded in this country as a function of the bench rather than of the bar, and has been lodged in whatever part or parts of the judi- cial system the legislature has picked out. Under the principle of the separation of powers, it has even been regarded by the courts of some states as a part of the judicial power, in their independent exercise of which the courts cannot, under the state constitutions, be controlled by the legislature. This doctrine, however, is of relatively modern ori- gin. It is confined to the courts of a few states and has been expressly repudiated by others. It has not affected in any essential respect the development of our systems of bar admission in the past ; and in view of the ease with which constitutional amendments can now usually be secured, it is not likely to do so in the future. Democratic desire to keep the privilege of practicing law within the reach of the average man accordingly reinforced the natural tendency of a unitary state to keep governmental functions under its own con- trol, and so prevented one feature of the traditional English system- — that of a self-determining bar — from securing permanent lodgment in this country. The same democratic impulse combined with the exigen- cies of a newly settled community to prevent the English distinction between attorneys and counsellors from taking root; and combined later with the natural force of inertia to prevent official recognition of any other distinction between different types of practitioners. Here again a start was made. Both in jurisdictions where the movement toward an independent bar had started, and elsewhere, attempts were made to differentiate native barristers or counsellors from mere attorneys. The English line of cleavage, however, between practitioners who appeared as advocates, and practitioners who possessed other privileges in lieu of this, represented an artificial specialization that was not suited to the conditions under which law was practiced here. In this particular form the attempt to distinguish between practitioners of different types may be said to have died a natural death, here as in Canada. A more promising method of differentiation, which occasionally made use of INFLUENCE OF OUR POLITICAL PHILOSOPHY 39 this counsellor-attorney terminology, took the form of distinguishing between practitioners on the basis of the courts to which their privi- leges extended. Solicitors in chancery and proctors in admiralty, al- though occasionally mentioned, probably never had an independent existence. As in England, practitioners of one court could in general secure admission to any other. The English distinction between attor- neys of King's Bench and of Common Pleas, however, was still a gen- uine one. Several of the colonies introduced an analogous distinction between lower-court and upper-court practitioners. Two varieties of this method of differentiation existed. In Virginia, until 1787, the lower and the upper bar were kept rigorously distinct. A relic of this divi- sion survived until 1849, in the shape of a prohibition upon the carry- ing up of an appeal by the original attorney. Elsewhere, a graded, as distinguished from a divided, profession was built up; that is to say, an interval of practice in a lower court was required before an attor- ney could practice in the upper court as well. Weakened forms of this once common attempt to introduce official ranks or grades into the pro- fession still survive : in New Jersey, in the shape of a technical distinc- tion between attorney and counsellor; in Pennsylvania, in the shape of lower local bars — in Georgia, in the shape of higher appellate bars — technically independent of the general bars of these states. In New Jer- sey, the weakening has taken the form of a whittling away of the special privileges reserved for the counsellor; in the other states, it consists in a failure to require a period of pi-actice in the lower court before pro- motion can be secured to the upper. All these distinctions naturally flourished most in states where the democratic impulse had not begun to operate. As this made itself felt, they were identified as devices intended to help make the bar inacces- sible, and were either formally abolished or reduced to the empty forms just described. There is no inherent conflict between the ideal of throw- ing widely open the official privilege of practicing law professionally in the courts and official recognition of difl^erent types of practitioners, each enjoying its special privileges in this respect. The democratic wave, however, sweeping away the internal bamers that protected particular sections of the profession, converted it as a whole into an officially undifferentiated and, as it were, flattened-out profession. Since then we have become so accustomed to thinking in terms of a unitary bar that we are prone to forget that this unity has long since become only a legal fiction, not related to the facts of legal education and of legal 40 THE UNITED STATES practice. We have not even tried to introduce among our lawyers official distinctions corresponding to the wide diflFerences that actually exist in their preparation and subsequent professional activities. Our law of bar admissions is in this respect far behind the stage of devel- opment reached by our law governing licenses to practice the heal- ing arts. That law does not contemplate a uniform course of prepara- tion, and the passing of identical official examinations, by physicians, dentists, apothecaries, nurses and midwives. Our political philosophy, accordingly, worked upon inherited legal forms to produce the two important results noted. A system of judi- cial appointment (or admission) of practitioners, in force in the Eng- land of the eighteenth century only for the lower ranks of the profes- sion, and subsequently abandoned even for them, has been preserved as the uniform method by which all practitioners are admitted to practice in all of our states. And not only was there lost, along with the special self-governing organization of the old English bar proper, the notion that their special privilege of advocacy might properly be restricted to one differentiated portion of our legal profession ; but also functional distinctions of any sort, such as then still divided their miscellaneous lower practitioners, have been fused in the common mould of the Ameri- can "attorney and counsellor-at-law," privileged to practice all branches of his profession in all courts equally. In addition, and for the same reason, the process of securing admis- sion from the judges was made easier than in England. This effect of our democratic proclivities manifested itself in the two forms of weak- ening or abolishing the requirement of a five years articled clerkship and of postponing the development of an adequate examination system. Development in these respects proceeded differently in different juris- dictions and at different times. The movement has not been entirely in one direction. Broadly speaking — ignoring, that is to say, temporary reactions in particular states and a prevailingly more liberal policy in the newer and more sparsely settled jurisdictions — the general tend- ency up to the Civil War was to make admission to the bar more and more easy. Since then there has been considerable organized effort, which has been attended with partial success, to remedy the extreme laxity of the earlier period. The details will be found in subsequent chapters.^ The points of general significance to be noted here are, first, the relation of this movement, in both of its successive phases, to simi- 1 Part II (Chapters IV-VIII). A PROBLEM OF GOVERNMENTAL ORGANIZATION 41 lar movements affecting other branches of our governmental organiza- tion ; and, second, its effect upon the development of law schools. 3. Relation of the Public Profession of the Law to Gofuernmental Organization in General As bearing upon the first point it is especially significant that even when the democratic impulse expressed itself in its most extreme form, namely, in actually abolishing all educational requirements for lawyers, it never went so far as to do away with the institution of "the bar" as a special governmental class or order, enjoying the exclusive privi- lege of practicing law professionally in the courts, and thus distin- guished from the general run of citizens who may appear only in their own behalf, or sometimes in behalf of their friends, in individual cases. In fqur states the judges were at one time obliged by the legislatures to admit to their bar, as fully privileged professional practitioners, citizens or voters of good moral character, without imposing any edu- cational tests ; but the formal process of admission was preserved, in- cluding examination as to other than educational attainments. In the language of the single jurisdiction (Indiana) where this extreme pro- vision still survives, because it found its way into the constitution of the state, "Every person of good moral character, being a voter, shall be entitled" — not to practice, but — "to admission to practice law in all courts of justice." The distinction is a not unimportant one, even from a practical point of view; it is of the utmost significance as a guide to the more or less consciously formulated political philosophy that has dictated our varying methods of fitting lawyers into our governmental system. Neither the yray in which we have handled this bar admission problem in the past, nor the type of reforms that we may hope to in- troduce in the future, can be understood, unless it be clearly grasped at the outset that our lawyers have never been regarded by our law- makers as constituting, like our physicians, a private profession which, with the expanding powers of the state, is being brought more and more under governmental control. The development of our bar ad- mission systems has not taken the form, as has that of our systems of medical licenses, of mere social protection against the unfit holding themselves out as properly qualified practitioners of a recondite art. Our legislatures, because of their interest in other phases of the prob- lem, have been slow to recognize that this protection is as necessary in 42 THE UNITED STATES the case of practitioners of law as of medicine; but at least there has never been any question as to the regulation of lawyers being a proper function of the state. By an unbroken tradition, handed down from the first establishment of English courts, our lawyers have always been recognized as constituting a branch of the government to be treated as such; not a private but a public profession. This being understood, it is easy to account for the otherwise inex- plicable vagaries indulged in by some of our states between the Amer- ican Revolution and the Civil War. The need of trained experts in the administration of justice stood on all fours with the need of trained experts in other departments of government, but here, as in the civil service, this was by no means the only desideratum that seemed impor- tant to those who were endeavoring, however blindly, to build up our institutions on an enduring popular basis. A generation that was inter- ested primarily in throwing open public offices by denying the quasi- vested rights of functionaries, by abolishing property qualifications, by shortening terms of official tenure, was not yet ready to attack the problem of making its public servants competent. Rather, it was inclined to view with suspicion any regulations that tended to place obstacles in the path of those who aspired to enter the public service. In the case of lawyers, it identified requirements of fixed periods of preparation, followed by rigorous examinations, as part of the general restrictive rubbish which it was trying to clear away. Thus somewhat ruthlessly the bar, like the civil service, was popularized at the cost of efficiency. Similarly, after the Civil War, when this task had been pretty thoroughly accomplished, it was natural that attention should be given to the task of restoring such educational requirements for the public service as are compatible with the ideal of not making it too difficult of access for the average man. In the general history of our political development, the agitation for the improvement of our bar examination systems is thus seen to constitute a movement parallel to that of civil service reform. Neither movement can accomplish all that its promoters hope, if, in the justified emphasis that they plax;e upon the need of trained experts in our public life, they lose sight of the underlying ideal to which our people are now committed. Even those who do not sympathize with this ideal must recognize its importance as a practical factor in determining standards for ad- mission to the bar. Its tenacity cannot be appreciated unless its nature is clearly understood. It is not the expression of an easy-going social A PROBLEM OF GOVERNMENTAL ORGANIZATION 43 philosophy that denies to the state the right to regulate, in the inter- ests of all, the conditions under which individuals may in general earn their livelihood. It is grounded in a militant political philosophy that sees in the administration of justice a primary function of the state, and demands that those who earn their livelihood in this particular way shall be regarded, not as private citizens, but as public servants of a democracy. From this point of view, adequate preparation for the dis- charge of their responsibilities is as requisite for lawyers as for those engaged in private professions ; but something else is necessary as well : namely, that the opportunity to share in these responsibilities shall not be unduly restricted. Arguments in favor of low professional standards, in general, are so easily refuted that this special complication which attaches to the public profession of the law is too often overlooked. In particular, those who are academically trained are liable to institute a misleading analogy between physicians and lawyers. Because, histori- cally, these have been equally regarded as "learned professions," the distinguishing political characteristics of practicing lawyers are ig- nored. The real force of the democratic contention is thereby obscured. Our people look to schools of medicine to supply medical service, and ask only that it shall be good, both in its theory and in its practical application. They purport to make their own law, however, and are cor- respondingly suspicious of any effort that, under guise of bettering the law or its administration, may seem to weaken their control. Considerations that have no bearing, accordingly, upon the regula- tion of the medical profession bulk very large in determining the policy of the state in organizing its public service. The proper organization of the legal profession is not, like that of the medical profession, pri- marily an educational problem that might be solved under any form of government in much the same way. It is primarily a part of the general problem of political organization, the solution of which in a democracy presents peculiar difficulties. It is only by approaching it from this point of view that we can understand what has been done, what can be done, and what ought to be done to make the American legal profession an efficient instrument of popular government.' 1 Compare Chapter VII, sees. 1 and 3 ; Chapter VIII, sees. 3 and 5. 44 THE UNITED STATES 4. Effect of Weakened Bar Admission Requirements upon the Development of Law Schools The second point of general significance to be noted in connection with the weakening of American bar admission requirements is this : The laxity of regulations designed to keep control of the legal profession in the hands of judges and of practicing lawyers provided the Ameri- can college with an educational opportunity such as English and Cana- dian universities have never possessed. Even prior to the Revolution, some of our colleges had begun to evince a tendency to escape from the narrow formulas of their original classical and mathematical courses, and to embark upon professional or vocational work. Medical schools had already been established by Benjamin Franklin's College of Philadelphia and by old King's Col- lege in New York City, the ancestors of the present University of Penn- sylvania and of Columbia University. After the Revolution, this vo- cational impulse, broadened now to include legal education, continued in the middle Atlantic states, and through the influence of Thomas Jefferson was manifested also by William and Mary College in Vir- ginia. In this state, for a combination of reasons — the relative unim- portance of manufacturing and trading interests, the contempt felt by the Colonial aristocracy for native attorneys and the libertarian policy of Jefferson himself — the requirements for admission to the bar were already so weak that William and Mary's law department had no diffi- culty in securing its start at once. Subject to the vicissitudes caused by the Revolutionary conflict, it was in operation from 1779 until the Civil War. Its later and more successful rival, the University of Vir- ginia law school, owed its origin to the same combination of personal and social influences, and, except in a strictly organic sense, is reaUy a continuation of this, the first American law school. In the middle states, on the other hand, the requirements for bar admission were for many years too severe to make possible the success- ful inauguration of institutional instruction in vocational law. After the Revolution, and again during the first quarter century after the War of 1812, several colleges attempted to expand elementary legal instruction, intended merely as a part of liberal education, into gen- uine professional schools, but all failed. Finally, in New England, in addition to the obstacles imposed by the early bar admission require- ments, the colleges themselves, prior to the War of 1812, were less ready to broaden their activities beyond their traditional scope of non-voca- DEVELOPMENT OF LAW SCHOOLS 45 tional education. Harvard and Yale lagged behind the University of Pennsylvania and Columbia in attempting to establish professional schools, either in law or in medicine. The special obstacle in the northern states, during these early years, was the still prevailing requirement of a period of clerkship. What saved the situation was not merely that in most cases this requirement was already weaker than the corresponding English provision, as re- gards its length and its failure to call for formal articles of appren- ticeship. Even more important was the fact that attempts to limit the number of clerks who might study under one attorney were soon abandoned. This paved the way for the thoroughly natural develop- ment of a private attorney's law office into a private class or school — that conducted at Litchfield, Connecticut, by Judge Tapping Reeve, and by his successor, Judge James Gould, from about 1784 till 1833. This was not the first law school in America, but it was the first law school of national reputation that taught students from all parts of the country. The success of this institution led not merely to the founding of similar private law schools in other states. Coupled with the earlier development of independent medical schools conducted by practition- ers, it also proved to be influential in determining the manner in which university professional work would eventually be organized through- out the country — more so than Jefferson's two Virginia institutions. These had attempted to introduce the European idea of professional faculties strictly coordinate with faculties offering instruction in the liberal arts. When Harvard and Yale, however, entered the field of pro- fessional education — as they wisely postponed doing until they were reasonably certain to succeed — they each preserved their old college unchanged. They merely attached more or less loosely to it profes- sional departments controlled by practitioners. They thus exemplified a compound type of university organization which, although recently somewhat modified in individual instances, furnished the model to which American institutions of higher learning still pretty generally conform : at the core, a college of liberal arts ; around this, a circle of vocational schools in varying stages of administrative dependence. In both cases legal education was undertaken later than medical edu- cation — at Harvard in 1817, and at Yale in 1824. The Harvard law school had no success until it called in the acting head of a private law school of the Litchfield type to take charge of its routine work. The 46 THE UNITED STATES Yale law school was for many years an independent institution only loosely affiliated with the university. Expansion by one or the other of these two methods — by the new establishment of a law department conducted by practitioners, or by taking some already established school under the college wing — be- came the typical process by which American colleges succeeded in secur- ing a foothold in legal education. With the progressive weakening of bar admission rules, this step in the conversion of a "college" into the greater dignity of a "university" was possible everywhere, and was very commonly taken. The few institutions that had embarked upon the study of law under the slightly earlier Jeffersonian influence were event- ually obliged to conform to this prevailing model. Law degrees were established, and for a time the tradition continued that such degrees could properly be conferred only by a university. This contributed to the replacement of technically independent schools by more or less spu- rious unions. Although the general tendency has been for these unions, once established, to become more intimate, in some cases development in this direction has been arrested by peculiar contracts or types of university organization. Later it was discovered that by appeal to the legislature, or under general incorporation acts, any incorporated med- ical school or law school might obtain the privilege of conferring de- grees. A second crop of independent law schools then arose. StiU later other organizations entered the field, notably the Young Men's Chris- tian Association, sis an incident to its general educational development. At present, therefore, in addition to law departments that are at- taxjhed to colleges or that form parts of more or less genuine univer- sities, there is offered an abundance of institutional work leading to a law degree. Opportunity to engage in legal education has been ex- tended to the colleges, but it has by no means been confined to them. Over-rigorous apprenticeship requirements stunted the development of legal education in England; the decaying remains of these require- ments produced in this country a soil favorable to a rank growth of law schools.'' 5. General Points of Resemblance among American Law Schools Apart from their deferences in organization, these law schools are in some ways very much alike and in other ways quite unlike one another. 1 Compare Parts III, VI and VII (Chapters IX-XVIII.XXHI-XXXI). RESEMBLANCE AMONG LAW SCHOOLS 4,7 They are alike, in the first place, in the position — peculiar to this country — that they occupy in the general system of bar admissions. The systematized instruction that they offer does not constitute, as does similar instruction in Continental Europe, a definite phase of the entire course of preparation that is obligatory upon at least a part of the prospective bar. Nor yet is it, as under the English rules for the admission of solicitors, a mere optional overlay upon office work, that if taken at all is taken concurrently with this practical training, ex- cept sometimes during the first year. It is no more necessary here than it is in England for those who wish to be admitted to practice to take any law school work, if they can in other ways secure the preparation needed to pass the professional examination. If, however, they do at- tend a law school, then the training they secure there is almost uni- versally assumed to be all the training they require. In a very few states such students, or such of them as are not college graduates, are required to spend also a little time in a law office, not concurrently with their law school work, but during an additional period. But even in these cases the benefits derived from office work are not tested by the bar exami- nations. Everywhere the law schools are regarded as competent to pro- vide all the preparation that the state admitting authorities think it worth their while to ensure by formal tests ; and in a not inconsidera- ble number of jurisdictions, if the law school authorities have declared themselves satisfied by conferring upon the student their own degree, the state will even waive its own examination. Law school work in America, in other words, has been transformed from an optional over- lay into an optional substitute for office training. The freedom that is technically given to the applicant not to take any systematic instruc- tion is a direct heritage from England. The general understanding that if he does go to a good law school and makes good use of his oppor- tunities, that is all he needs to do, represents the form which the Eng- lish tradition of training under an individual practitioner naturally as- sumed when this individual, with his maximum quota of two articled clerks, was allowed to expand himself, as it were, into a group of prac- titioners undertaking to instruct an indeterminate number of students. This is the technical position occupied by law schools in our bar admission systems. Their actual importance has been greatly increased by the growing complexity of our law, and by the movement since the Civil War to stififen bar examinations. For the greater complexity of the law renders systematic study, as distinguished from practical fa- 48 THE UNITED STATES miliarity with the law in its actual operation, an increasingly essential feature of a student's preparation. Conceivably a conscientious attor- ney might give to his student clerks both these features of a complete legal education. Attorneys, however, who have time and inclination to teach law systematically can do this most easily and effectively in a law office that specializes in just this sort of thing — in a practitioners' law school, in other words, which naturally draws to itself this type of man out of the law office proper. Furthermore, it is not possible to frame bar examinations intelligently except on the basis of the curriculum and standards provided by these same schools. The law schools therefore dominate the situation. Students may attempt to prepare themselves to pass the bar examinations without attending a law school; but it is be- coming increasingly difficult for them to succeed. Conditions, of course, vary greatly in this respect in different parts of the country. In the more sparsely settled states, where local law schools have not developed, the office student is still common, and in all states which prescribe a definite , period of preparation, a combination of unsuccessful school work and so-called office work plagues the examiners. The general tendency, how- ever, is clearly in the direction of making a law school education the only practicable method of securing the preparation requisite for legal practice. The general character of the preparation has been profoundly modi- fied by this shift from office to school. The tradition that a law school education is all-sufficient has survived the partial expulsion of active practitioners from its staff. Furthermore, a law school, even when run by practitioners, cannot as a matter of fact duplicate the work of an office engaged in actual practice. Thus we are in a fair way of losing entirely the practical training secured under a practitioner, that was once assumed to be the only logical means of preparing students in Anglo-American law. Even its remnants are not usually regarded by the law schools as worth preserving, now that they have virtually pre- empted the entire field of legal education. Moot courts, introduced in imitation of those in the old English Inns, and " practice courses" are among the devices by which they conceal from themselves and others the necessarily theoretical character of their instruction. A further point of likeness between the schools consists in the strong family resemblance that their curricula, even apart from their inher- ently theoretical character, bear to one another. They are alike to begin with in what, from the point of view of Continental Europe, is their RESEMBLANCE AMONG LAW SCHOOLS 49 extreme narrowness. The broad fields of economics and of government which are there regarded as essential elements of a lawyer's training are with us cultivated, if at all, only by the minority of students who attend college before entering the law school. The exclusion of these topics from the law school curriculum proper is explained first by the law office parentage of the modern American law school, and secondly by the greater and constantly increasing complexity of our technical law. This has made it impossible for academic influences to add these topics and yet continue to do justice to the narrower field of study during the limited number of hours available for instruction. Further- more, the resemblance is not confined to the prevailing exclusion of non- technical subjects. It extends likewise to the classification and choice of technical subjects, where again the pressure of time is severely felt. Unless the curricula were outwardly very similar, one to another, the schools could not have obtained their present uniform standing in the bar admission systems. For the curriculum is the one outstanding fea- ture of a law school of most obvious interest to the authorities respon- sible for admitting students to practice. In any single state, schools can take over the function of preparing these students for admission only to the extent that the course of preparation includes all the topics that the admitting authorities think ought to be included, and in which they test an applicant's proficiency through their own examinations. And since it is everywhere recognized that the common or judge-made law, because of its intricacy and its relative importance, must form the back- bone of the student's preparation, and since, in spite of minor divergen- cies, the general principles of this law are everywhere the same, it fol- lows that there is a likeness also as between state and state. National law schools, that prepare students to practice in all jurisdictions, are at once an outcome of this general similarity between the school cur- ricula and the bar examination content in all the states, and an addi- tional factor in perpetuating it. In this process of curriculum building, the part played by the bar ex- aminers in partially standardizing the course of preparation must not be confused with the small direct influence exerted by them upon the activities of the stronger schools. Our admitting authorities possess the same theoretical power as those of England and Canada to determine, through the content of their examinations, what the curriculum of the law school shall be. Owing to their actual weakness, however, as com- pared with English and Canadian authorities, they have not interfered 50 THE UNITED STATES with the free development of legal education to anything like the same extent. Occasionally courts or bar examiners irritate individual schools by including in their examinations topics — notably matters of pro- cedure and practice — that seem to such schools hardly worth while. This, however, is only a contributory influence in the building up of the law school curriculum. Its main lines are determined in the follow- ing manner : One or two leading schools develop a curriculum which, in more or less modified form, is copied by other schools throughout the country. The bar examiners recognize this as orthodox, and build their own examinations upon it. Subsequently established schools can do nothing else than conform to this model. By this interplay of forces the school curricula are kept fairly close together. The wealthier schools add new topics or subdivide old ones, but owing to limitations of time these innovations are usually given as electives. As regards the greater part of the work actually taken by the majority of the students, the schools all ostensibly cover about the same ground. They have to, so long as they all cherish, with the sanc- tion of the state, the ideal of preparing students to enter all branches of legal practice. This task has now become so difficult that even the strongest schools accomplish it indifferently well. Other schools are constrained to follow their lead, often at a long distance.^ 6. Points of' Dissimilarity among American Lam Schools Underneath this superficial similarity wide and ever widening differ- ences exist between the schools. The fact that no corresponding distinc- tion has been made in the position accorded to them in our system of preparation for the bar must be ascribed primarily to the fact that they were originally interlopers in the field of legal education, and had slowly to fight their way to recognition against the prejudice of men trained by earlier methods. To these older men in actual control of the details of bar examination systems, distinctions between school and school seemed at first slight compared with the distinction between office training and law school education in general. Owing to this, and to the general laxity of professional control, little enquiry was made as to details. The schools reached their present position as an undivided group. When later the differences between them became still more marked, and control of the bar examinations passed into the hands of 1 Compare Part V (Chapters XXI-XXII). DISSIMILARITY AMONG LAW SCHOOLS 51 men better qualified to appreciate how important these differences were, the tradition of a uniform system of admission into a unitary bar was too firmly established to make possible a varying treatment of recognized law schools. To the extent that there has been any facing of the problem created by the existence of widely different institutions, all purporting to do the same thing, recent effort has taken the direction, not of according varied privileges to schools of different types, but of denying any recog- nition to schools not possessing certain qualifications ; but this move- ment, more drastic in its conception, has produced only slight results in diminishing the vai-iety of schools that continue to be recognized. Among the more important variations of which no cognizance is taken are differences in the kind of law taught — local and concrete, as against national and generalized — and in the method of in^ruction employed — textbook or dogmatic, as against a critical examination of cases or original sources. Even the amount of time devoted by the student to his education is generally ignored. It is true that as regards the mere length of the technical course, several states have refused to recognize law schools offering a course covering less than two or three years, as the case may be; and some states prescribe also the minimum length of the academic year and the minimum number of classroom hours offered weekfy. This has done something to reduce the natural variations be- tween the schools in this respect. As regards, however, the at least equally important feature of the amount of general education required for the law school degree, the schools have been left to themselves, and vary from no entrance requirements at all to the prerequisite of a col- lege degree for admission. The farthest that any state has gone to meet this situation has been to require a high school education of all ap- plicants for admission to the bar, and usually the student is not obliged to satisfy even this requirement until he comes up for his law examination. That is to say, the useful English safeguard of a pre- liminary examination before the technical studies begin is omitted in favor of a requirement that encourages cramming in general subjects after the applicant has already begun to study law. Finally, there is a distinction of the utmost importance between schools intended for students who during their years of residence devote all their time to their studies, and schools designed for those who can set apart for this purpose only part of their working hours. Under our present sys- tem of bar admissions both types of schools stand on an even footing. 52 THE UNITED STATES If we are properly to understand the condition into which legal ed- ucation has drifted in this country, this matter of the amount of time expended by the student in securing his education is fundamental. In its three aspects of the length of his technical course, the amount of preliminary time he must devote to general subjects, and the amount of time he is expected to devote to his studies while in the school, it is the quantitative measure of our present law school degrees. What- ever other criteria are useful in distinguishing school from school, here is one that cannot be overlooked. In particular, the kind of law that is or should be taught, and the method of instruction that is or should be employed, are largely determined by the general education of the students and by the amount of time they devote to their work while in the school. Similarly, the quality of the instruction offered and the many factors that affect this quality, such as the capacity and the re- muneration of the instructors, are matters of great importance; but be- fore they can be profitably considered, the relative effort thatis expected to be put forth by the student body must first be clearly grasped. A strange spectacle is here presented. Radically differing amounts of preparation are regarded by the admitting authorities as all just about the same thing. What is to be said — not in historical justification, but in logical defense-^ — of this situation.? As regards the first aspect of the quantitative measure of legal edu- cation — the mere length of the technical course in years, weeks and classroom hours — it may be said that the admitting authorities have shown a tendency not only to face the problem by their prescription of minimal quantities, but even to go farther in the way of minute regula- tion than is wise, in view of the extent to which they ignore the other two aspects. The length of the course is a feature of law school activi- ties that lies on the surface and invites regulation from above. But it is at least open to question whether a requirement that some states have introduced often hours classroom work weekly has not hurt rather than benefited night law schools, by compelling them to hold sessions every night instead of leaving two or three evenings free. Its effect is not to increase the amount of time that serious students devote to their work, but merely to alter the distribution of their time between class- room work and outside preparation. As regards the second aspect — the amount of general education de- manded by the states — it may be said in further exculpation of their previous leniency in this respect that it is not reasonable to expect DISSIMILARITY AMONG LAW SCHOOLS 53 a demo^acy to raise the amount of general education requisite for admission to its public service beyond the level that can be reached by the average man ; that in proportion as our public high school system has been developed, the states are showing a tendency to require this much; and that subject to grave administrative defects, which can easily be remedied once attention has been called to them, this minimum requirement compares favorably with that in force to-day either in France or in England. In both these countries the minority who can secure a greater amount of general education do so, and receive corre- sponding professional benefits, though in different ways : in France by entering an upper branch of the profession ; in England by entering an inner circle of both branches, determined not by law but by social and professional sanctions. In this country, underneath our lax formal re- quirements, we have consistently preserved the English tradition that, if he can get it, a college education is a good thing for a lawyer, from many points of view. So the college graduate has always found his way into the law schools and into the profession, whatever have been the ac- tual requirements for entrance into either. Recently a few law schools, in order better to serve their own special purposes, have chosen to spe- cialize in college graduates, as it were; a still larger number of schools, similarly anxious to have a foundation of general culture and maturity on which to build, yet loth to lose to their competitors students not possessing this foundation, have introduced compromise entrance re- quirements at some point between a full college course and the mini- mum of general education that the law allows; it does not necessarily follow that the states ought to raise this minimum beyond the now gen- erally accepted high school requirement. Those who appreciate the force of the democratic contention that the bar must be kept accessible will feel that the question at issue is rather whether superior general edu- cation should be a requirement enforced as in France, not for legal practitioners in general, but for an upper professional branch still to be established. At this point, however, the question runs into the broader and more difficult problem of whether a formal differentiation of the technical bar, corresponding to the differences which actually exist among practicing lawyers, can be and should be secured. If it is neither practicable nor desirable to accord varied privileges to schools of differ- ent types, then there is much to be said in favor of continuing the Eng- lish custom of relatively low formal requirements by the admitting authorities, and of leaving individual law schools free to decide for 54 THE UNITED STATES themselves whether they prefer to restrict their own activities to the preparation of that element in the profession which is willing and able to preface its technical studies with college work, or whether they would rather prepare a larger number of less well educated students.' As regards, however, the third aspect in which the amount of time devoted by the student to his legal education presents itself — namely, the amount of time he is expected to devote to his studies while attend- ing the school — no defense, built up on English analogies, can be made for the existing situation. The distinction that has grown up between schools in which the student devotes all his working hours to securing a mastery of the law, and schools intended for students engaged in other occupations, is vital. It has been ignored in the admission requirements of the states. This has produced such lamentable effects that it will be worth while, even at the cost of subsequent repetition, to include in this preliminary survey a brief account of how the schools came to be divided into these two contrasted groups, and of why this theoretically desir- able differentiation works so badly in actual practice. 7. Origin of the Distinction between Full-time and Part-time Law Schools Traditionally, of course, a law student was expected to devote all his working hours, during his period of technical training, to the law. This was true whether, as under the original English system, he secured his entire training in the office of an individual practitioner, or whether, as in the system developed there during the nineteenth century, he divided his time between office and school. The English have never departed from this principle; nor, at first, did we. We applied it, however, to our earlier law schools in two ways. Predominantly, the law office an- cestry of these schools resulted in their inheriting naturally the en- tire time of their students. Thus there grew up our characteristically American full-time type of law school, whose students are expected to devote all their working hours not only to law study in general, but also to the particular course of study provided by the school. In the small country towns, where most of our early law schools were situated, the later English combination of school and practical office work could not have been introduced, even if it had been desired; for there were not enough practical law offices available to accommodate the large number of law school students. 1 Compare Chapter XXXII, sec. 1. FULL-TIME AND PART-TIME LAW SCHOOLS 55 The pressure of work in these full-time schools far exceeds that main- tained in the law schools or universities of other countries. It is among these schools, also, that the movement for higher entrance requirements and for the exacting case method of instruction arose. Foreign observ- ers are full of admiration for what is accomplished by mature and broadly educated students under these conditions. Valuable as is the service provided by these schools, however, it is necessarily restricted to that element of the population that is able to devote all its time to educational activities during a long period of years. The low tuition fees demanded by state universities — the provision of scholarships and student aid by endowed universities — the opportunities for remuner- ative occupation that are open to students of unusual physical and mental vigor during the academic year or the long summer vacations — these are all merely palliatives. The unfortunate fact remains that many students are, and always must be, debarred from the advantage of attend- ing these schools, not because their capacity is inferior to that of the general run of students who do attend, but because they spring from an economically less favored class in the community. The better this type of school is, the more closely does it approximate to one ideal which we surely need to preserve : that of supplying the very best legal educa- tion to those who can afford to secure it. Not all of our earlier law schools, however, took advantage of the opportunity afforded them to claim the entire field of legal education fori themselves. TTiere was an undercun-ent of feeling that law school education, in spite of its practitioner origins, is inherently theoretical. One way of preserving the practical element is to have the student at- tend a genuine law office while he is in the law school. In the larger cities conditions were favorable for this experiment; and so quite com- monly here, whether because of office clerkship provisions lingering in the bar admission rules, or because of a traditional respect for this idea that survived the abolition of a formal requirement, the hours for class- room sessions were placed at a time of day — usually the latter part of the afternoon — that was convenient for practitioner instructors and for office students. The student was supposed to be devoting his entire time to the study of law, but was not supposed to be devoting his en- tire time to the work of the school. The arrangement resembled some- what that which was meanwhile being put into effect in England, and was doubtless to a considerable extent a conscious imitation of this model. 56 THE UNITED STATES There was this important difference, however: In England the stu- dent was certainly in a genuine law office under strict articles of clerk- ship. In this country, on the other hand, not only was the office con- nection from the beginning less carefully supervised, but also — and particularly in our larger cities — the demand by law offices for genu- ine student assistants gradually fell off. This change, due probably to the substitution of the stenographer for the long-hand copyist more than to any other single cause, reduced the education secured by an increasing proportion of the students to that provided by the school itself. Both the late classroom hours and the not very exacting stand- ards of purely law school accomplishment survived this change. Event- ually, the existing large-city law schools pretty generally — so notably Columbia and the University of Pennsylvania — took up the slack, and transformed themselves into full-time institutions. Meanwhile, how- ever, these features of law school organization, originally introduced for the benefit of law office clerks, had incidentally served to open the doors of the schools to students engaged in other occupations. A class of young men, ambitious to secure a legal education, but not able to afford that provided by a full-time school, had been brought into ex- istence. New schools were started for their especial benefit; and with improvements in methods of artificial illumination it became possible finally to hold sessions in the evening, thereby extending the opportu- nity to secure a legal education to a still wider element of the popu- lation. Thus arose the modern night law school, whose existence, like that of similar institutions in other educational fields, is justified by the democratic desire to extend the privileges of education to the many — a desire that is particularly potent when this privilege carries with it that of admission to our governing class. The existgnce of this type of school has facilitated the most notable improvement that has been recently effected in bar admission rules — -a general lengthening of the prescribed period of study. It is comparatively easy to put through this reform if the study may be pursued in a night law school. The full-time law school and the part-time law school proceed, ac- cordingly, from different premises. The one seeks to serve the com- munity by turning out well-educated lawyers. In pursuit of this aim, it must turn away those who cannot give to its work the requisite time. The other accepts the overflow and gives them all it can during the time at its disposal. It serves the purpose of keeping the privilege of practicing law from falling too exclusively into the hands of those VARYING PREPARATION FOR A UNITARY BAR 57 who can afford the first type of education. This differentiation of the schools into two types, each emphasizing one of the two fundamental characteristics of a bar admission system that are demanded by an efficiently governed democratic state, has much to commend it in its promise of future development. If law school graduates enjoyed dif- ferent privileges in the practice of the law, corresponding to the dif- ferences in educational effort between full-time and part-time work, the two types instead of rivaling would supplement one another. Each could develop independently along the lines indicated by its own special aim. The full-time schools would, for instance, be entirely free to ignore democratic considerations in such matters as the raising of their en- trance requirements, for the reason that another type of institution would already adequately satisfy this demand. Part-time education, in and of itself, is in no way undesirable. It is as idle to deny that earnest students can and do profit much from attendance at a good evening or late afternoon law school, as it is to pretend that work pursued under such conditions can be equivalent to that of a good fuU-time institu- tion.^ 8 Evil Effects of Combining Radically Hifferent Types of Preparation with the Theory of a Unitary Bar The evil^ — the very great evil — of the present situation, as a result of which all part-time legal education now rests under a justified cloud, lies in the perpetuation of the theory of a unitary bar, whose attain- ments are to be tested by uniform examinations. This formula, once adequate to the needs of sparsely settled communities, has been car- ried over into a period when it is no longer workable. Under the notion that there is such a thing as "a" standard lawyer, radically different educational ideals are brought into conflict with one another, to their mutual injury; this in face of the fact that they actually produce radi- cally different types of practitioners. To begin with, the night schools are damaged by the obligation placed upon them to cover the same curriculum as the day schools. Since they can do this only in a rela- tively superficial way, the best teachers, and to a considerable extent also the best institutions, often hesitate to enter into what, from a scholarly point of view, is low-grade work. This throws the field open to more or less well-equipped promoters who operate proprietary schools — 1 Compare Chapter XXXII, sec. 2. 58 THE UNITED STATES a necessary preliminary phase in the development of our educational system, but a phase that is being rapidly outgrown among full-time schools because it exposes school standards to obvious dangers. The bad reputation enjoyed by night schools then reacts unfavorably upon the development of full-time schools as well; for under a system of free competition these latter are so fearful of losing students to institutions which — they are confident — are debauching the bar, that they hesitate to raise their own entrance requirements to the level that they really believe in. In their relations also with the bar examiners, both types are affected adversely. The remedy of the evil that some full-time schools would like to see employed — namely, the maintenance, by these examiners, of such high standards that night school graduates could not hope to pass — is hopelessly impracticable. Even apart from the fact that night law schools, through their graduates, can bring pressure to bear upon courts and legislatures to prevent themselves from being killed, the bar ex- aminers are in general too conscious of the fallibility of their own tests to assume the responsibility of discriminating against the large num- ber of applicants who come up from these institutions. Even under the most favorable conditions, therefore, the standards of the examiners are lowered beneath the level that would be practically enforceable for graduates of full-time law schools. These latter institutions are to this extent deprived of the benefit of an external test keyed to their par- ticular capacity. This loss is the more unfortunate because even within their institutions the English tradition of a comprehensive and inde- pendent university examination has almost wholly lapsed. In most cases the examinations for the degree are conducted separately for each one of the many subjects into which the curriculum is divided, and by the same individual who supplies the instruction. Even so, it would appear that the bar examinations might at least have some effect in checking up the work of the night schools. But here the additional complication must be reckoned with, that the distinction between full- time and part-time work is not merely a distinction between more and less. Many full-time schools, as already noted, aim to teach a type of law that is different from the local law of the night schools, and em- ploy different methods that are designed to produce different qual- ities in their graduates. The bar examiners are thus faced with the im- possible task of devising a single set of tests for two quite different types of attainments. If they favor either type at the expense of the VARYING PREPARATION FOR A UNITARY BAR 59 other — as sometimes, during spasmodic efforts to "raise standards," they are courageous enough to do — they promptly get into trouble. For the full-time schools, equally with the part-time schools, have their graduates through whom they influence the judges to whom bar exam- iners owe their appointment. The examiners soon learn that their wis- est policy is to ask questions of a sort, and grade answers in a manner, that, if it does not assist, at least does not penalize the work of either type of school. In other words, they are obliged to limit the scope of their enquiries to those elements that any law school, offering the standardized curriculum, must provide — something that even the more poorly trained of the night school students can pass, at least with the aid of special coaching in the peculiarities of individual examiners. Not merely is there little check upon those who actually graduate from either type of school, but even students whom the schools themselves regard as inferior slip in : in some states because no definite period of study is prescribed ; in other states because applicants, taking advan- tage of a rule that requires mere attendance (not satisfactory comple- tion of the work) either in an office or in a school, eke out an unsuc- cessful school record with easily obtainable " attorney's certificates." In a word, the conventional picture of our bar admission system that is commonly drawn is as follows : The state, through its examining board, is supposed to test all applicants for admission to its bar — in most cases after they have already been subjected to tests provided by the schools. The actual situation is that neither the tests of the state nor those of the law schools serve to prevent incompetents from flooding the profession. Taking into consideration the effect of night law school ad- vertising in artificially stimulating a demand for legal education, there can be little question but that, in spite of all recent efforts to raise bar examination standards, more incompetents are to-day admitted to the bar than when, under laxer formal requirements for admission and a far smaller development of good law schools than we now possess, the generality of actual applicants nevertheless received a sound training in the office of an old-fashioned practitioner. This may not be the only reason for the comparatively low repute which our present generation of lawyers enjoy, but it is at least a highly important contributory cause. The good are lumped with the bad in popular condemnation.^ 1 Compare Chapter XXXIII. 60 THE UNITED STATES 9. Actual Educational and Social Differentiation of a Technically Unified Profession The dark side of the present situation has been shown. Its bright side is that there has been at all times an element in the profession that has carried on the old traditions of the English bar. Originally composed for the most part of college graduates who studied in the best law of- fices, this element — although still very hazily defined — now tends to be composed of college graduates who have studied in the best law schools. While in its lower ranges the bar, for the reasons just described, has been getting worse and worse, on top, at least from the point of view of intellectual mastery of the law (for of course there are crooks both above andbelow),the development of lawschools has made it better and better. Thus, beneath the formula of a technically u nified bar within each state, the profession has actually become widely differentiated. Soon after the Civil War, steps were taken to organize the upper ele- ment into selective bar associations designed to " maintain the honor and dignity of the profession of the law." The technical division of the bar along state lines has greatly handicapped this movement and re- tarded the upbuilding of a federated national organization capable of exerting its influence effectively upon the profession as a whole. Credit for such advance as has been made in improving standards of bar admis- sion must, nevertheless, fairly be given to these associations — or more specifically, to the small but devoted minority of their members who, amid many discouragements, have applied to this end their new and still inadequate professional machinery. The precise place which these associations will ultimately occupy in the organization, technical and actual, of the American bar has yet to be determined. In some ways they resemble the old English "Society of Gentleman Practitioners." The immediate analogy in accordance with which they were originally foi-med was supplied by American medical societies. To some, accord- ingly, it has seemed that, when their internal organization has been perfected, they might aspire to the same control of the entire legal profession that is now exercised by the Law Society over English solici- tors or by the American Medical Association over our own physicians and surgeons. In view of the different conditions that prevail both in the English legal profession and in the American medical profession, as compared with the American bar, it is at least doubtful whether this ideal can, or should, be realized. On the other hand, a great opportu- nity is open to these associations to make more explicit the identity CHARACTERISTICS OF PRESENT SYSTEM 6l that already to a considerable extent exists between their own mem- bership and that element in the legal profession that has graduated from colleges and from full-time law schools. A combination of the three forces that make for the highest type of lawyer— a liberal education, an intensive course of technical training superimposed upon this, and the maintenance of bar association standards of professional ethics — would be practicable to-day if it were confined to the younger men, and did not exclude from bar association membership those whose pro- fessional record alone would give them a valid claim for admission. This union of the best scholastic and the best professional elements would be an important first step toward introducing some sort of order into the present chaos of the legal profession. There would then stand out among the mass of technically identical, but actually most dissimi- lar, practitioners, such as different methods of preparation are certain to produce, a well-defined, powerful and respected inner bar. It could be left to the future to determine what further steps might prove neces- sary to prevent less soundly trained practitioners from abusing the priv- ileges that democratic philosophy demands shall be theirs — whether these privileges must be restricted by law, to correspond to the tjrpe of training such lawyers receive, or whether popular and professional reputation, accompanied perhaps by a corresponding development of their own professional associations, will provide a sufficient sanction to accomplish this purpose. At this point, however, we enter the realm of contemporary discus- sion. What is here emphasized is that, with all their imperfections of organization, and uncertainty as to where their true mission lies, our modern bar associations are clearly destined to play a very important part in the much needed improvement of the American legal profes- sion.-' 10. General Characteristics of American Law and Methods of Recruiting a Legal Profession To sum up this introductory survey of our general development : We have carried on the English tradition that law is nothing more nor less than a body of rules enforced by the courts, as contrasted with the Continental conception of an external body of law that exists under this name, independently of the form that the courts give it when ap- 1 Compare Part IV (Chapters XIX-XX). 62 THE UNITED STATES plying it to concrete cases. In determining the content of this law, our existing judges are under a self-imposed obligation to respect decisions made by their predecessors in similar cases; and they are under an ob- ligation imposed upon them by the state to respect competent legisla- tion ; but they are not under any obligation, as are the judges of Con- tinental Europe, to respect a systematized body of theoretical prin- ciples, largely the product of the universities, and now sanctioned by the state as authoritative law. It is only from considerations of conven- ience that they actually do lean to an increasing extent upon a similar, though less completely systematized, body of textbook or notebook doctrine that our universities and independent legal scholars have as a matter of fact brought into existence. In taking over from England this conception of law, our early judges naturally took over at the same time the content also of the earlier English judge-made law; and the respect that later judges have paid to precedents thus established, combined with the general failure of our legislatures to enact compre- hensive codes, has perpetuated the general principles of this earlier law till the present. Inevitably, however, with the lapse of time, the bodies of law enforced in our several states have diverged from that of Eng- land; and because under our federal system of government there is no general right of appeal from the highest courts of the states to the Su- preme Court of the United States, these bodies of state law have also diverged to some extent from one another. This latter divergence has been checked by the respect paid by our judges to precedents estab- lished in other states than their own. Thus a relatively uniform body of American law has been created. The device used to accomplish this result has, however, greatly increased the number of precedents that may have to be consulted in order to determine the law of any single state. A burden much greater than in England is thus thrown upon judges, upon practitioners, and upon students of law. Both the prac- tice and the teaching of the law, approached in this manner, are so diffi- cult and, owing to unavoidable judicial error, yield such unsatisfactory results, that a group of universities is now engaged in teaching pri- marily not what the law actually is in any particular jurisdiction, but what it ought to be in the country as a whole. Lack of sympathy with this ideal by the courts sometimes leads to still further confusion. Our law of bar admissions is like our law in general, in being based on English traditions, but in showing now a considerable divergence from the English system of the eighteenth century, and a still greater diver- CHARACTERISTICS OF PRESENT SYSTEM 63 gence from that in force to-day in England or Canada. From England we inherited the institution of lawyers as an official class specially privi- leged to practice law professionally in the courts, and therefore always under state control. From England also we inherited the tradition that the state organs which might most appropriately grant admission into this privileged class of practitioners are the courts themselves, since it is fundamentally their law that is practiced. From England finally we inherited the tradition that the student's course of technical training in this law is properly to be pursued under an actual practitioner, and that if a law school education may be accepted in lieu of this, the substi- tution is justified by the fact that the school is conducted by practition- ers, and not at aU by the fact that it may form part of a university. On the other hand, our political philosophy intervened to prevent the con- trol of the profession from passing out of the hands of the judges into those of the bar itself, to wipe out all distinctions of privilege within the bar, and greatly to facilitate the process of admission. This last step, and particularly the failure to limit the number of students who might enter a law office as clerks, made possible in this country a much freer and more natural development of law schools, many of which be- came attached to colleges as parts of a new American type of univer- sity. These schools, all of which occupy an identical position in the eyes of the law, resemble one another in the range of topics included in their inherently theoretical and prevailingly narrow course of study. The adaptation by the bar admission authorities of their own examinations to this orthodox curriculum has the effect of drawing students out of the law offices into the schools; and even independently of this influ- ence, the private law office, because of its own changed character and of the increasing complexity of the law, is no longer competent to pro- vide satisfactory training. The law schools as a whole thus virtually monopolize the field of legal education. Underneath their superficial similarity, however, these schools differ vastly from one another in type of law studied, in methods of instruction, and in the amount of actual work represented by their degree. The most important distinction is that between schools intended for students of considerable general edu- cation who devote all their working hours to their studies, and schools intended for students of inferior general education who study law dur- ing such time as they can spare from outside remunerative occupations. Both these types of law school supply genuine social and political needs. 64 THE UNITED STATES Coming, however, into direct competition with one another under the accepted dogma of a unitary bar, each affects injuriously the other's development. In addition, the bar examination system, confronted with the task of providing uniform tests for radically different types of pre- paration, has collapsed under the strain. Students who could not secure the degree even of a poor law school are admitted to the bar with the same privileges as are acquired by honor graduates of the best schools. Finally, it is emphasized that a bar that includes elements so diverse is a unitary profession only in theory. In actual practice its members cannot work together in a professional spirit. Differences in training and in social standing are recognized, and we have actually a differen- tiated profession. Membership in selective bar associations produces an organic line of division, that is already to a considerable extent determined by considerations of this sort. The explicit recognition of educational standards as the basis of admission into these associations would constitute an important step toward the rational organization of the profession. PART II THE ORGANIZATION AND RECRUITING OF THE LEGAL PROFESSION IN THE UNITED STATES IRRESPECTIVE OF THE INFLUENCE EXERTED BY LAW SCHOOLS CHAPTER IV AUTHORITIES ADMITTING INTO THE PRACTICE OF THE LAW 1 . Location of the Admitting Power at the Close of the Colonial Period THE systems of admission to the bar in force immediately prior to the Revolution ^ may be roughly classified, with reference to the admitting authority, under three heads. In Massachusetts, New Hampshire, Pennsylvania and Maryland the traditional English system, whereby each court was empowered to admit attorneys to its own bar, still prevailed. This was presumably also the case in the frontier colony of Georgia. The tendency was for the high- est court to guard its bar more jealously than the courts below and thus to establish the principle of a graded profession. In Massachusetts a third grade of gowned barrister had been added to those of lower court and upper court attorneys. In Rhode Island each court was empowered to admit attorneys, but the principle of judicial comity, naturally emphasized in a small com- munity, had early crystallized into a definite right on the part of an attorney admitted by one court to practice in any other. Under such circumstances the local court is more likely to be chosen by an appli- cant than the higher court. In Connecticut this had developed logically into the rule that admission to general practice was conferred by any County Court, and by these courts only. The Delaware system seems to have been similar except in one respect. From this period doubtless dates the technical distinction still maintained in this state between general practitioners at common law and in equity, corresponding to the original English distinction between attorneys and solicitors. In the five other colonies the principle of centralized control over admission to practice was established. This control was exercised in three ways. In Virginia the General (highest) Court admitted attor- neys to its own bar. In theory the lower courts also admitted to their respective bars, to the extent that the oath of admission must be taken in each one. Before this oath could be taken, however, a license must have been secured from an examining board appointed by the General Court. In South Carolina full control over admission to all courts was 1 For the origin of the legal profession in the American colonies, see Warren, Charles, History of the American Bar, 1913. 68 BAR ADMISSION IN GENERAL vested in the Supreme Court. In North Carolina, New York and New Jei-sey all attorneys were technically appointed by the royal Governor, though in practice such appointments were usually made on the rec- ommendation of a judge or court. Here also at least two grades of practitioners were distinguished; in New Jersey there were three — attorneys, counsellors and Serjeants. In all the colonies, but especially in South Carolina and Virginia, Eng- lish-trained barristers seem to have been recognized as the best educated type of practitioner, and to have been accorded, either in theory or in practice, privileges not possessed by the ordinary applicant, or by the or- dinary admitted attorney. Thus in Virginia, for instance, while attorneys might not practice in both upper and lower courts, barristers were sub- ject to no such restriction. These special privileges, accorded before the Revolution to actual graduates of the Inns of Court, are to be distin- guished from the indirect influence of this practitioner's degree in sug- gesting the home-trained "barristers," "counsellors" and "Serjeants" noted above as constituting upper grades of the profession in several colonies. 2. Development of the Decentralized Systems of Admission prior to 1890 For some sixty years following the Revolution, the primitive system of allowing each court to admit to its own bar showed some strength. Its adoption by New York in 1777, and by the federal courts in 1789, together with its survival in Massachusetts, New Hampshire, Pennsyl- vania and Maryland, made this the dominant system in the north- eastern, conservative section of the country, prior to the advent of the Jacksonian democracy. Between 1832 and 1838, however, Maryland, Massachusetts and New Hampshire abandoned it in the order named. New York followed their example in 1847. Thereafter, although occa- sionally introduced into the territories for a time,^ it was virtually re- stricted, as the permanent basis upon which the courts themselves may build, to Pennsylvania and to the federal courts, including those spe- cially instituted for the District of Columbia. A device that proved more popular was one which, as we have seen, had developed in Delaware and two New England colonies before the Revolution — the system that an attorney, having been admitted by any one of several courts, became thereby entitled to practice gener- ally in all. In its origin, this system found its justification in the ac- 1 So notably into Wisconsin, New Mexico and Utah. DECENTRALIZED SYSTEMS 69 quaintance which judges and practitioners, in comparatively small and thickly settled areas, had with one anothei". Under such conditions the maintenance of uniform standards was reasonably well assured, and it was a matter of courtesy among the judges, and of convenience to all concerned, to recognize admissions in one court as good for all. Later, as the movement for lowering educational standards gained strength, the idea came to have a value simply for this purpose. In its extreme form it degenerated into the system now in force in certain states, whereby an applicant, out of many avenues of entrance to the bar, freely chooses the easiest. Many varieties of this general system can be distinguished, as, for instance, those in which the applicant may come up only in the county or district of his residence (a requirement that can usually be evaded with little difficulty), or those under which not all courts, but only certain courts, possess the admitting power. In some juris- dictions this power was vested, not in a lower court as such, but in any two circuit judges. This was a degraded form of the Virginia sys- tem of 1792, under which any three (later two) "judges of the Su- perior Courts" might admit to practice. Such judges, at the time, held circuit courts individually, and constituted collectively the higher court of appeals. Later, in the development of our judicial system, it became necessary to establish special circuit judges distinct from those of the highest court; although possessing only local jurisdiction, they continued to be "superior" to the older County Courts, and hence in sev- eral states, including Virginia, they succeeded to the admitting power. In practice a single one of these local judges would examine the appli- cant; a second judge would then sign the certificate as a matter of courtesy. The Virginia system had great influence in the South and West. Several states, having started along this line, ended up in the older "any court to all" system. These minor distinctions, to whatever historical cause attributed, are of little importance in practice. The essential feature of this general method of securing admission to the bar is that, except in the very smallest states, no uniformity of stand- ards can be maintained, and that the court or judge who maintains the lowest standards is likely to be the one most frequented. As late as 1890, fifteen states or territories admitted applicants to general prac- tice under one form or another of this multiple avenue system.^ 1 Delaware (by 1736), Kentucky (1T96), Virginia (1809), Tennessee (1809), Michigan (183T-46; 1848), Missouri (1830), Maryland (1832), Massachusetts (1836), Mississippi (1840), New York (1847), Indiana (1851), Washington (1853), Minnesota (1856), West Virginia, (1863), Texas (1873). 70 BAR ADMISSION IN GENERAL Distinguishable alike from the "each court to each," or separate court bar system, which encouraged the development of several dis- tinct grades in the profession, and from the "any court to all," or mul- tiple avenue system, which tended to prevent the maintenance of any standards by or for any court, sixteen jurisdictions, in 1890, attempted to safeguard the bar of the highest court, but of the highest court only. This was done in one of three ways. Vermont, in 1787, had sub- stituted for its original court bar system the device of letting any lower court admit to all lower courts, but permitting the Supreme Court to regulate admission to its own bar. This plan survived, in 1890, in nine' jurisdictions, although in few of these was the distinction between the ordinary and the Supreme Court practitioner more than a formality. Indiana, in 1817, had approached the matter from a different point of view. Here, as in several other tenitories, under Virginia influence, two judges of the General Court had exercised the admitting power; and here, as in many states, this single type of judge had now been differ- entiated into distinct Supreme Court and Circuit Court judges. Virginia and several other states, as we have seen, had allowed the circuit judges to retain the power of admitting to all courts. Ohio, Louisiana, Illinois and North Carolina were instances of states that had restricted this power to the Supreme Court judges and had thus preserved the prin- ciple of centralization. Indiana made a distinction: any two circuit judges might admit to practice in all lower courts; any two Supreme Court judges might admit to practice in all courts. In modernized form (any one of several lower courts admits to all lower courts, the Supreme Court to general practice) this system was in force, in 1890, in four jurisdictions.^ Finally, California, because of its isolation and its size, had developed still another minor variation. Local courts admitted merely to their respective bars: the Supreme Court to general practice. This system existed, in 1890, in three of these sixteen jurisdictions.' 3. Decadence and Reinval of the Principle of a Central Admitting Authority In the years immediately after the Revolution the principle of cen- tralized control over bar admissions, which had been fostered by the 1 Florida (1846), Nebraska (1857), Kansas (1859), Georgia (1861), Wisconsin (1861), North Dakota (1877), South Dakota (187T), New Mexico, Oklahoma (1890). =* Alabama (1821), Arkansas (1836), Arizona (1865), Wyoming (1882). 3 California (1851-72 ; 1874), Utah (1884), Idaho (1887). A CENTRAL ADMITTING AUTHORITY 71 home government during the colonial periodj received a serious set- back. New Jersey preserved her system, as she has to the present day, and Virginia, North Carolina and Tennessee retained for the moment a modified and weakened form of central license. The principle was introduced into the Northwest Territory in 1799, and was retained by Ohio when this portion of the territory was erected into a state in 1802. In the other twelve states existing at this date, however, and also in the remainder of the Northwest Territory (reorganized under the name of Indiana Territory) and in the District of Columbia, admis- sion, at least to the lower courts, could be secured by one or other of the methods just described, as the result of action by a lower coui-t, or by one, or more usually two, local or itinerant judges. This tendency towai'd decentralization did not spring fi"om a deliberate desire to let down educational standards of admission. A centralized system of ad- mission may be a very weak one, and on the other hand in Massachu- setts and New York the principle of decentralization was for many years combined with very vigorous efforts to preserve an educated and graded profession. Decentralization sprang rather from the necessity of making the machinery of admissions physically accessible to appli- cants, especially in large or sparsely settled states; it was a single phase of a problem that confronted our states in the organization of their entire judicial machinery. As means of communication improved, a more or less effective concentration of the admitting power in a single higher court reappeared, especially in the smaller states — sometimes with the object of introducing standards when none had before ex- isted, but quite as often for the purpose of leveling individual high- standard courts down to a more moderate level of uniformity. For many years, however, it was only in a minority of the states and or- ganized territories that the admissions were technically centralized; in 1840 in eight jurisdictions^ out of thirty; in 1860 in ten^ out of thirty-nine; in 1890 in sixteen' out of forty-nine. These were the jurisdictions in which a single court — or in New Jersey, the Governor, acting on the recommendation of the Supreme Court — possessed an exclusive right to admit applicants to practice 1 New Jersey (1704.), Ohio (1799), Louisiana (1808), Illinois (1809), North Carolina (1818), Vermont (1836), New Hampshire (1838), Maine (1838). 2 Add Rhode Island (1844), Connecticut (1865). 3 Add Oregon (1861), Colorado (1861), Montana (1865), Nevada (1871), South Caro- lina (1878), Iowa (1884). 72 BAR ADMISSION IN GENERAL in all courts.^ The actual result of the conflict between the principles of centralization and decentralization is not accurately expressed, how- ever, by a classification of the admission systems on this single basis. In one-half of these jurisdictions, although in 1890 a single court was technically in control, it was either obliged to administer its rules through committees appointed by it for the localities^ or it had vol- untarily delegated its powers to local bar associations, courts or com- mittees.' Furthermore, in four of the systems classified as decentral- ized, the evils of divided responsibility were more or less completely obviated. This was the case in both of the "court bar" jurisdictions. In Pennsylvania, namely, the Supreme Court had retained colonial rules with reference to its own bar, which not only made this bar an upper grade of the legal profession, but also served very largely to standard- ize the rules of the courts below. In the District of Columbia the power to admit applicants (not already admitted as attorneys elsewhere) was as a matter of common convenience exercised only by the Supreme Court of the District. So among the multiple avenue states, New York, in 1871, not only reduced the number of admitting courts, but also made their activities subject to rules prescribed by the Court of Ap- peals.* Finally, the Wisconsin legislature, in 1885, though it retained the old system of technical admission by any circuit judge to all lower courts but admission by the Supreme Court to its own bar, added the requirement that all applicants must be examined by a central board. Immediately prior, then, to the modern movement to raise bar ex- amination standards, the states and territories were just about evenly divided between three methods of locating the admitting power. Desig- nating these by the names of their oldest surviving representatives, there was, first, the Delaware system, under which admission to general practice might be secured through more than one local court. This sac- rificed every other consideration to the need of making the admitting machinery convenient of access to applicants. Except in the smallest 1 The Governor also exercised the admitting power in Virginia until 1786, in the North- west Territory, 1799-1800, and in Mississippi Territory, 1807-18. In 1780 Governor Thomas Jefferson signed Captain John Marshall's license to practice law in Virginia. 2 In Maine, Colorado, Montana, Nevada. 3 In Connecticut, Vermont, Illinois, Louisiana. * For convenienceof exposition, the local divisions of the New York Supreme Court, reduced this year from eight to four, are regarded as separate courts. In a very tech- nical and unreal sense, the bar admission system of tliis state may be described as "centralized " since 18+7. Similarly in Delaware. A CENTRAL ADMITTING AUTHORITY 73 states, where the standards of the highest court were likely to be fol- lowed by the lower courts, this was inherently vicious. In the second place, there was the Alabama system, under which a distinction was at- tempted between the lower court bar and the more carefully guarded bar of the Supreine Court. This represented a more intelligent attempt to combine geographical convenience with maintenance of standards. Third, and last, were those states in which, as in New Jersey from the beginning, admission was more or less effectively centralized. This was frequently combined with a decentralized administration of the admis- sion rules ; and per contra, the element of centralized control had been injected into some of the technically decentralized systems, including the two surviving representatives of the primitive court bar idea. Since 1890 the movement has been altogether in the direction of centralization. It has sometimes taken the form of transferring the tech- nical admitting power to a single court and sometimes that of insert- ing an element of centralized control into a technically decentralized system. The manner and efficacy of the central control vary greatly, but on the eve of the War with Germany there were only two states that had failed to make some progress in this direction. These were Indiana and Kentucky, both of which retained the multiple avenue sys- tem of admission. In the remaining more or less completely centralized systems the tradition of special safeguards for the Supreme Court bar survived only in Pennsylvania and Georgia, and even here was of little practical importance. CHAPTER V CONTROL OF JUDICIAL ADMITTING AUTHORITIES BY LOCAL BARS AND STATE LEGISLATURES THE power of admission to the legal profession having been lo- cated by legislative action^ in the manner described in the pre- ceding chapter, the following question then arose : What authority was to determine the manner in which the courts should exercise this power, especially in the important features of the period of study (if any) which should be prescribed for applicants, and the means employed (if any) to test their individual proficiency? 1. Early New England County Bar Systems In the absence of further legislative action, any court that possessed the admitting power was in complete control of details. It was free to regulate its process of admission in any way that it chose. This made it possible for New England courts to dispense with any formal regu- lations of their own. Instead, they acquiesced in customs or rules estab- lished by those already admitted in bo the profession. Since under the statutes local courts possessed independent power to admit to their own bars, this meant that the county bars assumed control. As early as 1758 the bar of Suffolk County (Boston) was in control of the local situation, and shortly thereafter it established formal rules. This seems to be the origin of the county-bar system of admissions, which, by the end of the eighteenth century, was firmly established in Massachusetts, New Hampshire, Rhode Island and Connecticut. Clearly owing much to the traditional independence possessed by the upper branch of the English profession — the bar proper, as distinguished from the discredited at- torneys and solicitors — it was doubtless also an influence in the sub- sequent establishment, by legislation, of a similar system in the Cana- dian Provinces. There, partly because of a greater degree of centi-aliza- 1 During the colonial period the Governor sometimes established the system, by vir- tue of the ordinance power possessed by him under English legislation ; or sometimes he appointed attorneys himself, under broad powers derived from the same source. The existing power of the Governor of New Jersey to appoint attorneys and coun- sellors on the recommendation of the Supreme Court grew up on the latter basis. The court's control over admissions has been held to be confirmed by the State Con- stitution, irrespective of the principle of the separation of powers. In re Branch, 70 N. J. L. (1904) 538. NEW ENGLAND COUNTY BAR SYSTEMS 75 tion at the start, the provincial bars, as we have seen, have maintained their independence.^ With us the inconveniences of varying standards within the state were to some extent obviated by more or less formal agreements between the county bars. The New Hampshire county bars combined into a regular federation in 1788, and through this master- stroke of organizing ability were able to retain their privileges for fifty years. Similar efforts in other states were less successful.^ Originally, complete responsibility for the recruiting of the profes- sion was placed upon these New England bars. Their recommendation of an applicant was all that was demanded by the courts, and they deter- mined for themselves the grounds upon which they would recommend. This absolute control was first weakened when the courts intervened to determine the period of training required. This action appears to have been mainly an effort to standardize locally varying rules or customs. It was followed, after an interval, by the abolition of the entire sys- tem, either by the legislature or by a court, where the motive was more clearly to overthrow the theory of a self-perpetuating privileged class. The evils of a weakened esprit de corps were preferred to those of a pro- fessional monopoly. Both these steps were taken before the Civil War by Massachusetts,^ New Hampshire* and Rhode Island,' in the order named. In Connecticut the practice varied in the different counties; 1 See above, pages 24i-2S. ? As early as 1795 the Connecticut county bars entered into an agreement to estab- lish uniform periods of preparation, but did not live up to it. An attempt by the Massa- chusetts bars to adopt uniform rules led to action by the Supreme Court in 180C. 5 System abolished by the Supreme Court in 1806, but restored in 1810, except that the period of study was prescribed, and with the proviso that in case of unreason- able refusal by a county bar to recommend, appeal would lie to an individual justice. It is not clear by what authority the court undertook to make rules governing ad- mission to other courts. The rules do not appear to have been enforced. The system was finally abolished by the legislature in 1836. * Period of study prescribed by the Superior Court in 1833. Here again the court's authority to control admission to other than its own bar is not clear. System abolished by the legislature in 1838. Beginning in 18S9, the court attempted to revive its old rules for admission to an informally constituted upper branch of the profession, and in 1872 legislative author- ity was secured to make these the rules for regular admission. It proving impossible to enforce them, however,'the recommendation of the bar was converted, in 1876, into an obligation upon the applicant to secure the consent and approbation of the bar before beginning his period of law study. This relic of the original system sur- vived until 1901. 5 In 1837 period of study prescribed by the Supreme Court for admission to its own bar (separately constituted in 1822). Power of admission centralized in the Supreme Court by the legislature in 1844. System of bar recommendation abolished by the Su- preme Court in 1857. 76 BAR ADMISSION IN GENERAL although in 1855 the Superior Court was made the single avenue of admission, this body was essentially an integration of county courts, and adopted no general rules of bar admission until 1890. Under a pro- vision of these rules, still in force, the recommendation of the county bar continues to be required as a check upon the applicant's moral character. The main reason why this county bar system did not spread outside of New England was because elsewhere, during the colonial period, the ideal of professional independence was represented by graduates of the Inns of Court. Probably everywhere, in practice if not in theory, the holder of the English degree of barrister was accorded special privi- leges in the colonial courts. It was principally in South Carolina and Virginia, however, and to a lesser extent in other southern and middle colonies, that enough young men were sent across the water for the pur- pose of securing this degree to make of them on their return an influ- ential element in the legal profession.' Being members of what, in mod- ern terminology, would be termed an imperial bar, they would have had little sympathy with efforts of home-trained practitioners, such as were put forth in New England, to establish self-perpetuating local bars, rivaling their own. The seeds of self-determination not having been sown in this area during colonial times, the peiiod after the Revolution was not favorable for its development.^ 1 American students admitted to the Middle Temple between 1750 and 1776 were registered by colonies as follows : South Carolina, 35 ; Virginia, 31 ; Maryland, 14 ; Pennsylvania, 14; New York, 2; New Jersey, 2; Georgia, 2; North Carolina, 1; Delaware, 1 ; total 92. No New England student was registered after 1733. Bedwell, C. E. A., "American Middle Templars," 25 American Historical Review (1930), 680- 689. 2 In New York City, at the close of the colonial period, the members of the bar were very active in preserving their monopoly, but if a regular recommending system was in force, it probably did not survive the Revolution. By 1797 the Supreme Court had adopted a comprehensive rule regulating the entire matter, so far at least as con- cerned admission to its own bar. The Vermont Supreme Court, under the influence of its neighbors, required, in 1817, for admission to its own bar, recommendation by the county bar, in addition to an examination by a committee of such bar appointed by it. In 1826, for admission to the lower courts, it required both recommendation by the county bar and ex- amination by the County Court. This lasted until 1843, when the functions both.of "recommendation" and of " examination " were transferred tocommittees appointed by the County Courts. The certificate of a single attorney, required in the Northwest Territory in 1799, and since then in many northern and western states, appears to be a relic of the original New England requirement of recommendation by the entire local bar. INCREASING LEGISLATIVE CONTROL 77 2. Increasing Legislative Control over the Process of Admission It has been shown how usurpation of the judges' powers by the akeady admitted members of the bar, in accordance with English precedents, , was permitted in New England for a time, and how this method of control was finally abolished. It remains to enquire to what extent the state was willing to trust the judges themselves to develop a satisfac- tory bar admission system, without direct legislative interference. Space does not permit an exhaustive discussion of the relative extent to which the details of the bar admission systems of the various states are found in rules formulated by the courts in their own discretion, or in legislative statutes that the courts are bound to respect. In general, however, legislative activity was originally most pronounced in the southern and western states, and has tended to increase everywhere, so that in most jurisdictions the more important provisions are now embodied in the statutes. This was because legislative process provided the means by which the people could most easily secure their will. During the early democratization of the bar, no question was raised as to the constitutionality of such legislation.^ Since the Civil War, how- ever, public opinion has been more divided as to the steps that need to be taken in order to improve our systems of admission to the bar. The element that favors more stringent rules has often had more in- fluence with the courts than with the legislators, and laments the fact that progress is impeded by one of two causes : Where recourse must be had to the legislature to change existing statutes, the legislature refuses to act. Where the judges already have authority to introduce the proposed reforms, they hesitate to exercise it for fear of stimu- lating fresh legislation. To meet this situation, the idea has been broached that, under the principle of the separation of powers, legislatures have no constitu- tional power to interfere with the courts in the exercise of the judicial function of admitting applicants to the bar. In a few cases the courts have invoked this doctrine to defeat particular instances of legisla- tive aggression. In all of the cases, however, except the one first cited 1 The only decisions involving the admission of attorneys that have been found prior to 1860 discussed merely the question whether attorneys are civil or public officers, within the meaning of constitutional provisions regarding oath of office, or requiring such officers to be electors. The answer was uniformly in the negative. Benjamin Watkins Leigh's Case, 1 Munford (Va. 1810), 468; 7n the matter of oaths, 20 Johnson (N. Y. 1823),' 491; Jfa«ero/Dor««y,7Porter(Ala. 1838), 293; ExpartePorteri^SOhXo, Dec. 1858), 333. 78 BAR ADMISSION IN GENERAL below,^ the decision can be upheld on other grounds, and there are a larger number of decisions that expressly recognize the power of the legislature to control bar admissions.^ Even as a matter of technical law, the weight of authority seems to favor the existence of this power, which, historically, has been constantly exercised. Looking at the mat- ter more broadly, and taking into consideration the ease with which constitutional amendments can be secured, it is clear that lasting im- provement must be based on a cooperation of courts with legislatures. 1 In re Mosness, 39 Wise. (1876) 509 ; Matter of Ooodell, 39 Wise. (18TS) 232 ; but com- pare Application of Miss Goodell, 48 Wise. (1879) 693; Sx parte Splane, 123 Pa. St. (1889) 527 ; but eompare Hoopes v. Bradshaw, 231 Pa. St. (1911) 485 ; In re Day, 181 111. (1899) 73. 2 Matter of Cooper ;^% N. Y. (1860) 67 ; Ex parte Yale, 24 Cal. (1864) 241 ; In re Brad- well, 55 III. (1869) 535; Robinson's Case, 131 Mass. (1881) 376; Matter of O'Neill, 90 N. Y. (1883) 584; In re Applicants for License, 143 N. C. (1906) 1. CHAPTER VI EARLY BAR ADMISSION SYSTEMS. A GRADED PROFESSION BASED UPON LONG PERIODS OF PREPARATION WHETHER responsibility for ensuring proper educational at- tainments among those admitted to the bar is assumed by legislatures, by courts, or by the bar itself, the same choice of means is open. Reliance must be placed either upon the prescription of a definite period of training under competent instruction, or upon a final examination, or upon a combination of the two. The order in which these means were preferred was a natural resultof the traditional method of training lawyers as attorneys' clerks. For more than a hundred years after the Revolution, no adequate examining machinery existed in any state. During this time, owing to differences in emphasis produced by our political philosophy, the development of our bar admission systems as a whole passed through three successive stages: First, there was an earlier phase, marked by the existence in several states of long periods of training, especially in connection with a graded profession. Next, and lasting till the Civil War, came the reduction or abolition of these time requirements in the states where they existed, coupled in some cases with the doing away of even the rudimentary final examination. Following the war came a tendency, which has continued to the pres- ent time, to restore or to lengthen the prescribed period of training. Not until this movement was well under way was it accompanied by an effort to improve the examining machinery also. Postponing for subsequent discussion the development of examining machinery, the present chapter deals primarily with early prescriptions of long periods of training, and will be followed by one tracing the decadence and subsequent partial rehabilitation of this device. Early attempts to ensure long periods of preparation often took the form, however, of establishing successive professional grades, and when the period was reduced or abolished, the graded profession also collapsed. It will be convenient, accordingly, to consider the early vogue of this method of organizing the profession, and the few unsuccessful attempts that were later made to revive it, in connection with the more general topic discussed in these two chapters. 80 BAR ADMISSION IN GENERAL 1. A Graded Profession The institution of a divided or graded profession must not be confused with a mere technical classification of practitioners, according to the different privileges they enjoyed. Following the English tradition, the early admission rules of many jurisdictions distinguished between barr risters or counsellors and attorneys, and between solicitors or equity practitioners and those practicing in the courts of common law. If, how- ever, an applicant who had been admitted to practice as attorney in the common-law courts could immediately, merely by complying with additional formalities, secure the counsellor's right of audience and the solicitor's right to engage in equity practice as well, the technical dis- tinctions were of no importance and soon even the formalities would disappear. This was the situation in Virginia, for instance, where attor- ney and counsel were separately mentioned in the early statutes ; but as early as 1810 the court remarked: " The character of attorney and counsel are inseparably blended in the same person."^ So also, the lo- cation of the admitting power in the courts separately, or the special safeguarding of the bar of the highest court, did not of itself operate to prevent an immediate cumulation of privileges in a single applicant. Something more than this was needed to divide or to grade the pro- fession. The distinction between a divided and a graded profession must also be borne in mind. In England a definite line of division has al- ways been drawn between the bar proper, on the one hand, and the lower practitioners, on the other. The same individual cannot enjoy both sets of privileges. Similarly, in New York, counsellors could not prac- tice as attorneys until 1804. Likewise in the eighteenth century at- torneys of King's Bench and of Common Pleas were not permitted to practice in one another's courts. Colonial Virginia divided its lower court and upper court practitioners in the same way until 1787. Doubtless other early instances could be found of a divided profession, such as nearly all European countries possess to-day. Efforts in this direction were, however, quickly abandoned. The reason why this division was originally impracticable is clearly that there was not, in the beginning, enough law business to support specialized groups of practitioners. The general practice of the law was not a field so broad that the older practitioners wished to lose the ^ Benjamin Watkins Leigh's Case, 1 Munford, 468. A GRADED PROFESSION 81 privilege of cultivating it in its full extent. For the same reason they were not anxious to have too many competitors in it. One method of combining a more or less conscious monopolistic tendency with an ef- fort to ensure adequate educational attainments in the profession was to prescribe long periods of training before admission to general prac- tice. A still better method was to prescribe long periods of training before admission to the lower courts, and additional periods of prac- tice there before additional privileges could be secured. Considerations such as these led to the establishment of a graded profession, as a per- fectly natural outgrowth and strengthening of the traditional English idea of apprenticeship training for the law. The same causes that mili- tated against a permanent division of the profession fostered the in- troduction of successive grades, of which only the highest enjoyed the privilege of general practice. Since the requirement of intervening periods of practice is essential to the existence of a graded profession, description of the different grades recognized by the states may be most conveniently given in the next section, where all early prescriptions of long periods of prepara- tion are assembled.^ It remains then merely to enquire why it was only in the northern colonies and states that this idea was elaborated. The explanation is to be found in the southern custom, already alluded to, of sending young men across seas to be educated in the Inns of Court These practitioners, enjoying the prestige of an English legal educa- tion, had constituted a natural upper bar. Such subordinate distinctions as had been made were of little importance compared with this, and provided no basis for future development. In the northern colonies, on the other hand, distinctions among native-trained practitioners had greater vitality. While, therefore, in the South, the Revolution, by closing the Inns of Court to Americans, virtually destroyed the upper bar, in the North it produced no such effect. The indigenous institu- tion of a graded profession, which had already arisen in Massachusetts, 1 It may be noted in addition that North Carolina is said to have required, between 1819 and 1869, one year's law study for a County Court license, and an additional year for a general license. Colonial New York differentiated its attorneys as follows : Those appointed by the Governor, on the recommendation of the Chief Justice, were authorized to practice in aU courts ; those appointed without such recommendation, only in one or more local courts. The distinction between attorneys, solicitors in chancery and counsel- lors was also recognized. For admission to general practice as attorney, three years apprenticeship was usually required of college graduates, seven years of others. Nothing is known as to the requirements for the other branches of practice. 82 BAR ADMISSION IN GENERAL developed and spread throughout New England, in the congenial at- mosphere of the county bar system of admissions, and was extended from here to New York, and temporarily to the Northwest Territory. Pennsylvania and New Jersey occupied an intermediate position in that they retained, but did not accentuate, their already graded systems. 2. Long Periods of Preparation Association with a practitioner is the natural method of acquiring the rudiments of any art, and in the less well defined or simpler occupa- tions the relationship does not need to be hedged about by any rules. It continues merely until its object has been attained. It is only as the complexity of the task increases, and as a guild spirit arises among those who are already masters of the art, that we pass into the apprentice- ship stage of educational development, in which the relationship must continue during a definite period. A still later stage is that in which specialists arise to teach and train, whether as individuals conducting classes or as instructors in organized schools, colleges or universities. During the eighteenth century the education of English attorneys and solicitors was in the pure apprenticeship stage. Since 1729 Par- liament had required a uniform period of five years service as articled clerk to a practitioner prior to admission by any court. In our Amer- ican imitations of this system, the requirement of formal articles of apprenticeship, when introduced at all, was quickly dropped. In some cases also there was no uniform period within the colony or state, owing to the failure of the legislature either itself to fix the length or to empower a single court to do so. In the smaller states, however, prac- tical uniformity was usually secured by more or less formal agreements between the judges or between the county bars. In the large state of Pennsylvania the Supreme Court, from 1767 till 1903, although techni- cally in control only of admissions to its own bar, exercised its powers in such a way as to standardize the periods of training required by the lower courts as well. It admitted only applicants who had served a "regular apprenticeship" (converted in 1788 into a "clerkship") for a certain number of years prior to practicing in a lower court during an additional period. In many states, also, the length of the period was reduced below the English standard. Virginia, however, is the only one of the thirteen original states that prescribed no period of training at any date until LONG PERIODS OF PREPARATION 83 quite modern times.^ And in several northern jurisdictions, thanks to the invention of a graded profession, very stringent requirements were imposed. Thus, on the eve of the democratic upheaval, Massachusetts required, before final complete privileges were secured, a course of train- ing and practice that aggregated eleven years if it included a college education, or nine years if it did not; New York required ten years in either case. Instances such as these help to explain the popular reaction against the prescription of any definite period of preparation. The following is believed to be a complete list of periods of prepa- ration of as much as three years, that were in force at any date prior to the Civil War, omitting only a few very early requirements which, in Massachusetts and New York, were sometimes even more stringent than the rules quoted.^ Massachusetts, 1810-36, by rule of court, for admission to the lower courts, five years, or for college graduates, three years ; for admission to the Supreme Court, as attorney, two years subsequent practice; for admission as counsellor, two years practice subse- quent to this. New York, 1829—46, by rule of court, for admission as attorney to the bar of the Supreme Court, seven years, towards which there might be counted up to four years of classical study pursued after the age of fourteen ; for admission as counsellor, three years sub- sequent practice. New Jersey, 1767-1817, by rule of court, for attorney, five years (with one year's allowance to college graduates, after 1780); for counsellors, three years subsequent practice. 1817-81, nominally the same, except that the attorney period was reduced by one year. New Hampshire, 1805—33, by rule of the federated county bars, for admission to the lower courts, five years in the case of appli- cants qualified, except as regards knowledge of Greek, to enter Dartmouth, three years in the case of college gi-aduates; for ad- mission to the Superior Court, two years subsequent practice. Between 1833 and 1838 the same periods were prescribed by court rule. ^ A requirement of two years study was not introduced until 1903. In 1760 Patrick Henry was admitted after six weeks private study. 2 By 1763 the members of the New York City bar had carried their monopolistic tend- encies so far as to enter into an agreement not to receive into their offices as clerks any young men who intended to pursue the law as a profession. This was modified the following year into a four-year clerkship for college graduates. The Suffolk County (Boston) bar in 1771 required first a college education, then three years before ad- mission to the lower court, two years before promotion to the Supreme Court, two more years before promotion to barrister, or a total of eleven years after leaving the lower schools. 84 BAR ADMISSION IN GENERAL Vermont, 1826-43, by rule of court, for admission to the lower courts, five years, reducible by two years in the case of college graduates, and by some amount less than two years in the case of a partial college education; for admission to the Supreme Court, two years, or for admission as solicitor in Chancery, three years sub- sequent practice. 1843-98, nominally the same, except that two and one-half years' allowance was made to college graduates, and the separate provision for solicitors in Chancery was abandoned. Maine, 1821-37, by act of legislature, seven years in the acqui- sition of scientific and legal attainments, of which at least three years with a counsellor-at-law. Northwest Territory, 1799-1800, by act of legislature, for at- torney, four years; for counsellor, two years subsequent practice. 1800-02, period for attorney reduced to three years. Georgia, 1784-89, by act of legislature, five years. South Carolina, 1796-1812, by act of legislature, four years, with one year's allowance to college graduates. Pennsylvania, 1788-1903, by rule of court, for admission to the lower court, three years for applicants under, or two years for ap- plicants over, twenty-one at the time they began their law studies; for admission to the Supreme Court, two years subsequent practice. Or for applicants under twenty-one the total of five years might be divided as four plus one. Delaware, since colonial times, by rule of court, three years. In Connecticut and Rhode Island, the traditional requirement imposed by the local bars, and subsequently adopted by rule of court, was three years, with one year's allowance to college grad- uates. Louisiana, 1813—19, by rule of court, three years. Michigan, 1827-46, by act of legislature, three years. Maryland, prior to 1832, by rule of court, three years in some cases. CHAPTER VII EXTINCTION AND REVIVAL OF EDUCATIONAL REQUIREMENTS FOR ADMISSION BEFORE the close of the eighteenth century, the Massachusetts legislature attempted to overthrow the monopoly of legal prac- tice possessed by regularly admitted attorneys-at-law. Litigants were authorized to be represented in court by attorneys-in-fact, appointed by themselves. This legislation was subsequently copied in other states, including New Hampshire, New York and Michigan, but, like the priv- ilege possessed by litigants everywhere of appearing in their own behalf, it produced no important practical results.-^ Democratic agita- tion was compelled to take the form, not of providing amateur substi- tutes for professional lawyers, but of weakening, or even destroying, educational requirements for admission into this governing class. 1. Attack on the Requirement of a Prescribed Period of Preparation As will be shown in the next chapter, the situation in Virginia was colored for a time by reliance upon an examination, rather than upon an. apprenticeship period, as an appropriate method of ensuring edu- cational qualifications. Outside of Virginia, however, and in Virginia itself after the Revolution, no effective examining machinery was estab- lished for many years. Attacks were none the less directed against the prescribed period in jurisdictions where it had already been introduced, while in Virginia and in many western states it failed to obtain even a temporary foothold. These attacks were manifested more often in acts than in words, and represented a general attitude toward govern- mental problems rather than peculiar hostility to lawyers as such. The essentially governmental privilege of practicing law was thrown more widely open for the same reason that qualifications for governmental ofiice were reduced. The movement was grounded in the political philos- ophy of an insurgent democracy, which was fighting its way into con- 1 In New York the act was immediately declared unconstitutional. McKoan v. De- vries, 3 Barbour (1848), 196. In Michigan the Constitution of 1850 itself entitled any suitor " to prosecute or defend his suit either in his own proper person or by an attor- ney or agent of his choice," but in 1880, by a process of reasoning not easy to follow, the Court held that this did not authorize the appearance as "agent" of other than a duly admitted attorney. The provision was repealed in 1908. Cobb v. Judge of the Superior Court, 43 Mich. (1880) 289. 86 BAR ADMISSION IN GENERAL trol of our governmental machinery, and was less concerned with mak- ing sure that privileges bestowed by the state should be well bestowed than with guarding against their again becoming a monopoly of a favored class in the community. The successive steps in this democratizing process varied, of course, in the different jurisdictions, and are difficult to express in generalized form. The following figures bring out, perhaps as clearly as in any other way, how widespread was the tendency to lower educational standards. In 1800 a definite period of preparation seems to have been pre- scribed in fourteen out of the nineteen states or organized territories into which the Union was then divided, or in nearly three-fourths of the total number.^ In 1840 it was required in not more than eleven out of thirty ju- risdictions, or one-third of the total.^ Significant testimony as to the strength of western feeling in regard to this matter is provided by the "blanket clause" of the first state constitution of Ohio. This contin- ued in force the existing laws of the Northwest Temtory, not incon- sistent with that instrument, with the single exception of so much of the legislation affecting admission to the bar "as relates to the term of time which the applicant shall have studied law, his residence within the territory, and the term of time which he shall have practiced as an attorney-at-law before he can be admitted to the degree of a counsel- lor-at-law."^ In 1860 a definite period of study was required in only nine out of thirty-nine jurisdictions, or one-fourth the total number.* North Caro- 1 Known to exist at this date in Massachusetts, New Hampshire, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, Northwest Territory, Indiana Territory. In addition, Georgia and Tennessee either already had this requirement or introduced it within a very few years. Vermont had introduced the requirement in 1787, but almost immediately abolished it. The four jurisdictions in which the requirement had not even begun to develop, so far as known, were Virginia, Kentucky, North Carolina and the District of Columbia. 2 Abolished in both sections of the old Northwest Territory (Indiana Territory and Ohio) in 1801 and 1802; in Georgia, 1806; in Tennessee, 1809; in South Carolina, 1813. Reduced in New Jersey, 1817, and in Maryland, 1832. Abolished in Massachu- setts, 1836, and in its daughter state, Maine, 1837 ; in New Hampshire, 1838. On the other hand, it was reestablished in Vermont by 1817, and was introduced, in weakened form, into North Carolina, 1819, Ohio, 1819, and Michigan, 1827. The re- quirement also existed in Missouri between 1807 and 1830, and was introduced, only to be promptly abolished, into Louisiana, Mississippi, Arkansas, Wisconsin and Iowa. 3 Constitution of 1802, Schedule, sec. 4. ^ Abolished by New York and Michigan in 1846. Not introduced elsewhere, even temporarily, between 1840 and 1860. CLIM.\X OF THE DEMOCRATIC MO\'E>rENT 87 lina was now the only southern state, and Ohio the only state or terri- tory west of the All^hanies, to retain the requirement even nominaUj'. Coupled with this tendency to do away with the requirement alto- gether was a reduction of its length even in the states where it sur- vived, and a weakening of the administrative r^olations needed for its enforcement. In Maryland, North Carolina and Ohio the period was now only two vears.^ Formal "apprenticeship" had long given way to mere "clerkship" under an attorney, and in Ohio there was de- manded onlv an attomev's certificate that the applicant had "regu- larly and attentively studied law." That is to say, the study need not even have been under the attorney's direction, as in the original ter- ritorial law. Pennsylvania was the only state to require law students to roister prior to b^inning their period of study. I*robably in no state were the rules rigorously administered. 2. Climar of the Democralic Movemaii As a rule, where no period of preparation, however brief or however laxly enforced, was prescribed, the principle at least of an educated bar had been preserved in an examining system. As will be shown in the following chapter, the machinery provided for this purpose was so inadequate that in general no further action was deemed necessary by those who were interested onlv in fecilitating admission to the legal profession. In a few states, however, mandatory l^islation was en- acted to prevent the courts from utilizing their examining powers in such manner as to defeat the end in view, ilassachusetts led the wav, in an act adopted in 18S6 and in force for forty vears, under which admission might be secured in either of two wavs. Apphcants with or without previous training might take their chances with the comis. K, however, they were of good moral character, and had studied law for three j-ears in an attorney's office, then the courts were obUged to admit them. A few years later, the democratic movement reached its culmination in four states in the shape of legislation abolishing all educational requirements whatsoever. Every citizen twenty-one years of age, in New Hampshire after 1842, every citizen of Maine after 184S, everv resident of Wisconsin after 1849, and every voter in In- diana after 1851, was entitled to be admitted to practice in these states ^ For the length of the period in the other sis states, see the roles quoted in the pre- ceding ch^iter. 88 BAR ADMISSION IN GENERAL merely on proof of good moral character. The Maine and Wisconsin legislation was repealed in 1859. It was not until 1872 that the New Hampshire act was amended in such manner as to restore power to the courts. The Indiana privilege was unfortunately embedded in the state constitution, the amending process of which is so difficult that no means has yet been found to dislodge it. Drastic though this legislation was, it did not represent quite the extreme demands of the period. It totally abolished the power of the courts to require any educational qualifications for admission to the bar, but it did not destroy the traditional conception of abar, as a gov- ernmental order or public profession, distinguished from the general body of citizens. The precise privilege that was widened under the lan- guage of the legislation, as enacted, was the privilege of admission into this profession, not the immediate privilege of practicing law. There remained the institution of admitting courts, with power to pass upon the non-educational qualifications that the applicant must still satisfy. This result was secured by a very strict, though perfectly logical, con- struction of the language used in the various acts,' and it may be sus- pected that in some cases a contributory factor was the presence on legislative committees of conservative practitioners who understood the precise legal effect of the phraseology used better than did the rank and file of legislators. The Michigan constitutional convention of 1850 voted repeatedly to extend to every person of the age of twenty-one years, of good moral character, "the right to practice in any court," and it was only in committee that there was substituted for this the provision ah-eady cited ^ that looked equally broad, but that proved in practice to amount to little. A Utah territorial act, in force between 1852 and 1874, seems to be the only instance since early colonial times of legis- lation that attempted technically to abolish a professional bar in this country; and if a distinction between counsellors and attorneys was contemplated, even this was not a genuine exception.' 1 See Matter of William Brenn, 3 Howard's Practice (N. Y. , 1847), 169, for the proper construction of a provision of the New York constitution of 1846, which did not go quite so far in the direction of abolishing educational requirements as in the four instances cited, but provided in similar language that applicants, possessing thequali- fications recited, should ' ' be entitled to admission to practice in all the courts of the state." The decision pointed out the distinction between the right to be admitted and the right to practice, and confirmed the power of the legislature to determine who should exercise the admitting power. " Page 85, note. 3 This Mormon legislation made it the duty of all courts " to grant a hearing as coun- CLIMAX OF THE DEMOCRATIC MOVEMENT 89 The argument for the extreme democratic doctrine was phrased as follows by a contemporary radical : ^ "Any man may give either medicine or gospel and collect his dues. ... I want the lawyers to stand upon the same platform with the priests and the doctors. A man's property is no better than his life or his soul. We allow a man to tamper with both soul and body, but not with property." This misleading analogy rested upon at least three false assumptions. One was that, if the state protects property rights more carefully than it does physical health or eternal salvation, this inconsistency can be removed only by weakening the protection already accorded to prop- erty, instead of by according better protection to "soul and body." A second error was the notion that lawyers exist only to protect property rights, and that all other rights claimed by individuals under the law are self-enforcing and do not similarly require courts and professional lawyers to maintain them. A third untenable proposition was that a professional cIeiss, exercising this all-important governmental function, could be safely freed from governmental control — that forthe first time in Anglo-American law, the bar should be regarded not as a public profession, qualifications for admission to which may be made either high or low as public policy may seem to require, but instead as a mere private money-making occupation. It is fortunate that, into whatever excesses our law-makers were led, in their revolt against high educational requirements for admission into the profession, at least they did not take this final step. So long as the conception of a professional bar was retained, it remained possible to encourage educational standards even in states where they could not be required by law. Thus, in New Hampshire and Maine not only did the better class of applicants continue, as a matter of course, actually sel to any person of good moral character, chosen by any person or persons to pros- ecute or defend a case in which he, she or they are a party." So far this was merely an attempt, similar to that made by states cited at the beginning of this section, to authorize amateurs to compete with professionals. It was also provided, however, that counsel might not recover payment for services rendered ; and the further ideal- istic provision was added that an attorney must " present all the facts in the case whether they are calculated to make against his client or not." A North Carolina reconstruction act, in force for only two years after 1869, pro- vided that any citizen of good moral character and paying a Hcense tax of $20 should be allowed to practice law in the courts. The prerequisite of a license played the same ■part in defining the professional class of lawyers that formal admission by the courts did elsewhere. ^WhridgeG.Ga.leofM\chigan,ProceedinffsofOonstUutionalConventionofl850,p.8l2. 90 BAR ADMISSION IN GENERAL to have some legal training, but by the simple device of professional ostracism, directed against those vrho insisted upon entering under the statute, a " regular " or inner bar came into existence. The New Hamp- shire Superior Court countenanced this distinction by rules in force between 1859 and 1872.^ Indiana, since 1881, has had a statute that authorizes the admitting courts to set an optional examination in legal learning, and to enter the names of successful candidates upon a special roll ; while in case an applicant should refuse to waive his constitutional right to be examined only as to his moral character, the coui-ts are em- powered to give publicity to his refusal, by forcing him to prove his character before a jury. In compliance with this suggestion the Supreme Court and several local courts instituted a "Roll of Honor."^ These devices are of special interest as indicating the possibility of di- viding the profession on educational lines, when the state itself provides a unitary bar and demands little or nothing in the way of educational qualifications. 3. Revival of Interest in Educational Staridards Even before the Civil War, a reaction had set in against the mandatory legislation described in the preceding section, establishing the rights of applicants possessing certain qualifications to be admitted without examination.' The war itself exerted an influence in restoring educa- tional standards in two ways : First, its actual conduct taught us the meaning and the value of efficiency in public life, and the need of de- mocracy for the expert, at least in military operations. Secondly, its aftermath of corruption made certain political reforms indispensable, and thus brought reform as a whole into fashion. The strengthening of bar admission requirements became part of the orthodox programme of reform ; the more readily, because it was not difficult to trace a con- nection between the existing low standards of admission to the bar ^iRep. Am. Bar Ass. (1881) 939, 242; BmUs of Court, 38 N. H. (1859) 589. 2 2 National Bar Association Proceedings (1889), 55. The federal courts, sitting in In- diana, have also done something to remedy the ■ situation by departing from their usual rule of admitting to their own bars any attorney entitled to admission to the state courts. In 1877 they adopted a rule requiring an examination in the case of ap- plicants not already admitted to any other federal court, or not admitted to any state supreme court on examination. ' See above, page 88, for the dates, beginning 1859, at which power to enquire into the educational qualifications of applicants was restored to the courts in Maine, Wiscon- sin and New Hampshire. The Massachusetts courts regained full control in 1876. REVIVAL OF EDUCATIONAL STANDARDS 91 and the existing corruption of judges and politicians.'^ With so much to be done on all sides, this particular movement proceeded slowly for a while. The principal contribution of the decade 1870-80 to law re- form was the organization, by selected elements at the bar, of propa- gandist bar associations, which faced bar admissions as one of their many important problems.^ The direct influence of the most notable of these organizations — the American Bar Association, organized in 1878 — did not make itself felt until some years later. Meanwhile, how- ever, substantial progress was made. In view of the fact that the pre- scription of a definite period of law study had never ceased to exist in a minority of the states, while no adequate examining machinery ex- isted anywhere, the new movement naturally showed itself first in an extension of the principle of a prescribed period into other jurisdic- tions. In 1860 only nine out of thirty-nine states or territories, or less than one-fourth the total, prescribed any period of study.^ In 1890 the number had risen to twenty-three out of forty-nine, or nearly one-half,* 1 So, notably.in the best remembered instanceof the prevailing low standards of public morality — the Tweed ring conspiracy in New York City. "The general standard of professional learning and obligation was high during the first forty years of the nine- teenth century. About 1840 it began to decline, and its tendency was steadily down- wards until about 1870, when it reached its lowest ebb, when even the Bench was invaded by corruption, and found support in a portion of the Bar, and when tortured laws — that worst kind of torture — were in the metropolis the rule rather than the exception." Meport of the Committee on Admission to the Bar made to the Association of the Bar of the City of New York, 1876, p. 11. 2 See Chapters XIX-XXII. * Connecticut, Rhode Island, Vermont, New Jersey, Pennsylvania, Delaware, Mary- land, North Carolina, Ohio. * About 1860 the standing examining committee, for that portion of Illinois which included Chicago, instituted a requirement of two years law study. Although the entire system was abolished in 1865, this was probably a powerful contributory cause for a general introduction of the requirement into the newer western states and ter- ritories (Colorado 1861, Washington 1863, Montana 1865, Nebraska 1866, Kansas 1868, Wyoming 1869, Oregon before 1870, Idaho 1875, Minnesota 1889). The required period was reestablished in South Carolina 1868, New York 1871, Illinois 1871, New Hampshire 1872, Louisiana 1877, Maine 1881, Iowa 1884, Wisconsin 1885, and was introduced into the District of Columbia 1875. It was not until 1890 that Connecticut established it by general rule, which held all counties up to the standard already maintained by some. Sometimes, when no formal requirement existed, the examiners required the applicant to state the duration of his studies, and took this factor into account when making their decision ; so notably in certain Massachusetts counties. On the other hand, the requirement was abolished in North Carolina 1869, Idaho 1887. A South Carolina enactment of 1878, designed to stiflFen the requirement, led to legislation the following year abolishing it altogether ; and a similar attempt on the part of the New Jersey Supreme Court in 1881 called forth legislation that pro- duced practically the same result, by exempting from the requirement any applicant who could persuade five counsellors to certify to his " unusual aptitude." 92 BAR ADMISSION IN GENERAL and in 1917 to thirty-six out 'of forty-nine, or three-fourths of the total — the same proportion as in 1800.^ Together with the more gen- eral adoption of this requirement went also a lengthening of the period. In 1860 only six jurisdictions demanded as much as three years, some- times with one year's allowance for college graduates; and as late as 1890 there were only nine such states.^ At present, thanks in great part to the influence of the American Bar Association, twenty-eight states require three years preparation.' In connection with this reintroduction and lengthening of the pre- scribed period, occasional efforts were made to restore the principle of a graded profession.* These experiments were quickly abandoned, how- ever, and New Jersey is now the only state in which this principle is recognized.^ Even here the additional privileges secured by admission as counsellor are of little importance. The idea is practically dead, so far as practitioners' thought is concerned.^ It may be noted, however, that in 1877 Dean Langdell of Harvard suggested a division of the pro- fession as a means of reconciling the conflict, shortly to be described, between the state authorities and the schools. He described the type of lawyers that Harvard was endeavoring to train as "counsellors" or "advocates" as distinguished from "attorneys." It is not clear that he meant anything more than that the Harvard law school graduate was sure to be so well trained that his right to practice should not be ques- 1 See above, page 86. " Connecticut, Rhode Island, New Hampshire, Vermont, New York, Pennsylvania, Delaware, District of Columbia, Oregon. Of these Vermont and Pennsylvania were the only ones to require more than three years for full privileges. 3 The remaining states (besides Indiana) are principally southern or border states, but include a few in the far West. * Wyoming, 1869-82, for admission to lower courts, 2 years ; for admission to Supreme Court, 1 year of subsequent practice. New York, 1877-82, for attorney, 3 years, with 1 year's allowance to college graduates; for counsellor, 2 years subsequent practice. Alabama, 1886-98, for admission to lower courts, no period prescribed; for admission to Supreme Court, 2 years subsequent practice after age of twenty-one. 5 It lingered in Vermont until 1897, and in Pennsylvania until 1903; for details see above, page 84. In New Jersey 3 years practice as attorney prior to admission as counsellor has been nominally required since 1767. The repeal of the Five Counsellors Act in 1900 restored a semblance of vitality to the system. The number of years prep- aration required prior to admission as attorney is now 3. ^ It survives in the rule for admission to the bar of the Supreme Court of the United States : " It shall be requisite to the admission of attorneys or counsellors to practice in this court, that they shall have been such for three years past of the highest courts of the states to which they respectively belong, and that their private and professional character shall appear to be fair." REVIVAL OF EDUCATIONAL STANDARDS 93 tioned by the state, except in a perfunctory way. And as the contro- versy was soon adjusted in a mariner satisfactory to Harvard, the sug- gestion was not pressed. We have here the origin, however, of an under- current of academic thought which since then has occasionally risen to the surface. CHAPTER VIII DEVELOPMENT OF MACHINERY FOR EXAMINING APPLICANTS A BAR examination system, such as it was, came into existence in this country in three different ways. In New England the law- yers developed the examination as a supplement to their own require- ment that a definite apprenticeship must be served before admission to the legal fraternity. In Virginia the examination was rather in the nature of a substitute for the entire conception of a fraternity of law- yers. It was a licensing test imposed by the state upon a body of sub- ordinate officials. The other older states, at an early stage in their his- tory, combined these two plans and points of view. Individual memr bers of the fraternity trained future lawyers during a definite term of years, but in addition the courts, if they did not examine applicants themselves, at least organized — as they omitted to do in New England till a later date — the examining machinery. 1. Early New England System So long as the bar continued to control its own membership, the em- phasis was laid upon the completion of the prescribed period. In the beginning only the individual preceptor need be satisfied. The bar would recommend as of course, and the court would accept, an appli- cant vouched for by a brother member.' Gradually, greater formal- ity came to be introduced. The judgment of the preceptor would be checked by that of the whole body of the bar. This led to committee 1 Compare the language used by Jeremiah Gridley, in moving for the admission of Josiah Quincy and John Adams to the inferior court in Boston, in 1758: "Of Mr. Quincy, it is sufficient for me to say he has lived three years with Mr. Pratt; of Mr. Adams, as he is unknown to your honors, it is necessary to say that he has lived between two and three years with Mr. Putnam of Worcester, has a good character from him and all others who know him, and that he was with me the other day sev- eral hours, and I take it, he is qualified to study the law by his scholarship, and that he has made a very considerable, a very great proficiency in the principles of the law, and therefore, that the client's interest may be safely intrusted in his hands. I therefore recommend him, with the consent of the bar, to your honors for the oath." The oath having been taken, young Adams " shook hands with the bar, and re- ceived their congratulations, and invited them over to Stone's to drink some punch." He continued to study the law diligently, and three years later was admitted to the Superior Court. Adams, Life and Works, 1850, II, 49, 133. EARLY NEW ENGLAND EXAMINATION SYSTEM 95 organization in the larger or more active bars. In New Hampshire the federated bars, in 1805, established examining committees in every county. The more important function of this organized professional supervision was to determine whether a young man possessed sufficient general education to be permitted to begin the study of the law. To an extent difficult to ascertain at this late date, this supervision came also to include an examination of the applicant's knowledge of the law after he had completed his apprenticeship or law-office period. Throughout Connecticut, as early as 1795, this final examination was conducted by the county bars, either themselves or through com- mittees. The tendencies of the system are most clearly traceable in Ontario, where it has never been interfered with by the legislature. Formal en- trance examinations were instituted here in 1819 ; formal examinations for the "call to the bar," at the conclusion of the five-year period, were not instituted until 1831. The curriculum having been thus de- fined, the Law Society established, in 1855, lectureships leading up to this definite goal, and in 1873 a fully organized law school.^ This de- velopment was assisted by the manner in which legal education, and in- deed aU higher education, was organized in the mother country. In gen- eral, higher education in all European countries has proceeded through these same three stages : first, a fixed residential requirement extending over a definite period of years — in theory the apprenticeship idea, in practice often a meaningless formality; second, an increasingly strin- gent examination at the expiration of this period — this also being an inheritance of the guild idea that the apprentice must give final proof that he has taken advantage of his opportunities; third and last, the organization of lectureship courses or schools to provide systematic training for the student. The influence of these ideas upon legal edu- cation in England and Canada has already been pointed out.^ This same line of development was started in New England, and was car- ried far enough to make it natural that when the state ousted the bar from control, some sort of examination should stiU be retained — conducted now, however, by the court' or by a committee^ orcom- 1 The history is traced in detail by W. R. (Mr. Justice) Riddell in The Legal Profes- sion in Upper Canada in its Early Periods, published by the Law Society in 1916. 2 Part I, Chapters I and II. 3 So Vermont, 1826^13; Massachusetts 1836-76; New Hampshire 1838-42. * Committee appointed by the Supreme Comt in Rhode Island, 1857. 96 BAR ADMISSION IN GENERAL mittees"^ of lawyers appointed by it, instead of by the county bars or by committees appointed by these. By 1840 this transition to state control had been effected in New England outside of Connecticut and Rhode Island. In these two states and in Vermont, the requirement of a definite period of preparation survived, in addition to the examination. In Massachusetts, however, in 1836, and for forty years thereafter, an option was extended to ap- plicants : if they had studied three years in a local office, they were en- titled to admission ; otherwise they might be admitted on examination. Finally, Maine in 1837 and New Hampshire in 1838 provided an ex- amination only, and within a very few years abolished even this.^ It is clear that the transfer of control from the profession to the state, while justifiable on political grounds, had results which, from the purely edu- cational point of view, were unfortunate in the extreme. The demo- cratic movement tended to destroy systematic training, the only foun- dation upon which an efifective educational system can be safely built, and to leave in its place (if anything at aU) the unworkable scheme of an unsupported examination. 2. Early Virginia System Colonial Virginia presented a sharp contrast to New England. Social lines were more strongly marked. Planters' sons freely took advantage of the supposed educational advantages of the English Inns of Court.^ Home grown practitioners in the lower courts, reinforced by attorney immigrants, were looked down upon as a class who, receiving general condemnation, were thus encouraged to deserve it. New England law- yers had also to overcome early prejudice. There, however, the two branches slowly fused as the two grades of a united profession, and fought their way up to popular respect and political influence. In Vir- ginia, on the other hand, the separation between the upper and lower bar was maintained. If an attorney secured the privilege of appearing 1 Committees appointed by the Supreme Court for each county in Massachusetts 1806-10, Vermont 1817-26, Maine 1837-43. Appointed by the County Courts in Ver- mont after 1843. Appointed by local courts or divisions of courts in certain Connecti- cut counties from an early date. ^ See above, page 87. 3 Warren quotes a statement by Jefferson that in the middle of the eighteenth cen- tury the most eminent counsel of the bar of the General Court were all EngUsh- trained barristers. See also above, page 76. EARLY VIRGINIA EXAMINATION SYSTEM 97 before the upper courts, he lost the right to appear before the lower. It is to the political and social influence of the upper class that we must ascribe legislation enacted in 1732, designed to remedy the evils then alleged to exist in the lower order.^ As revived and amended in 1745 this legislation provided for control of the lower by the upper bar, through a system of licenses. The General Court appointed a per- manent examining board, composed of its own members or of attor- neys practicing before it, and compensated out of the fees of appli- cants. No period of apprenticeship was prescribed, and in view of the gen- eral repute of lower-court attorneys probably none was desired. Moral character was to be proved, not by the recommendation of such attor- neys, but by a certificate from the County Court, in which the power to grant admission to its own bar was still formally vested. The obli- gation upon the applicant to secure a license from the central examin- ing board was not a substitute for the exercise of its powers by the local court, but a wedge driven into the middle of the admitting pro- cess, an intermediate check constructed from a different point of view. After the applicant, on the strength of his character certificate, had been admitted to the examination, and had secured his license, then back he went again to the County Court to complete, through taking of the oath, the process of admission proper.^ If reliance could ever be placed upon an unsupported examination, this Virginia machinery was undoubtedly singularly complete. Had it been allowed to survi ve the Revolution unchanged, and had some method of caring for the upper bar also been evolved, that rested upon sounder 1 The preamble states : " The number of unskilful attorneys practicing in county courts being a great grievance to the country in respect to their neglect and mis- management of their clients' causes and other foul practices. ..." 2 The Virginia system was influential throughout the South for obvious reasons. Moreover, the early territorial development of the country occurred during the reign of the "Virginia dynasty" at Washington. In 1800, W. H. Harrison of this state was appointed Governor, and hence member of the Legislative Council, of Indiana Ter- ritory. Not only did this include all the territory lying between Ohio and the Mis- sissippi River, but in 180* all of the Louisiana cession outside the present state of that name was placed under the jurisdiction of this Council. Hence in many western states, also, Virginia ideas were planted. Usually, though not always, the require- ment that the applicant must return to the local court to take the oath was dropped ; "license," in such cases, became equivalent to "admission." On the other hand, the requirement that moral character shall be proved by a local court was a hardy plant. Even in states where the required period, after 1860, was revived, this feature of a local court certificate as distinguished from one granted by one or more attorneys, often remains, denoting early Virginia, as opposed to New England, influence. Con- trast, for instance, Illinois with Ohio. 98 BAR ADMISSION IN GENERAL educational foundations than this and yet avoided the extremes of New England Federalism, the history of our legal profession might have been very different. The Revisors of the Virginia laws, however (Jefferson and Wythe), introduced modifications better calculated to safeguard the political ideals of the people than the educational requirements of the profession. In the first place, the licensing system was now made to cover uniformly all branches of the bar, with the result that all gradations of rank and privilege immediately disappeared.^ In the second place, instead of a compensated board, the judges of the General Court them- selves now granted the license "after examination." The subsequent decentralization of the admitting authority, when circuit judges were established, has already been described.^ This further weakening of the examination system was of little practical importance, however, so long as in any case the judges were expected to do all the work. It is only under most unusual conditions that any court or judge, in our over- worked judicial system, can possess the time or the technical skiU to devise, either personally or with the assistance of attorneys drafted for the occasion, a static test suited to eliminate the unfit — even assum- ing that such a test be inherently possible. Our courts have usually endeavored to resist extreme democratic pressure so far as lay within their power. But without even the tradition of a study period to sup- port them, there was little they could do. Simple justice as between applicants demanded that virtually everybody be let in, when the test itself was clearly inadequate. The situation in New England became suffi- ciently demoralized, but in Virginia and in the many states influenced by it requirements sank to an even lower level. 3. General Reliance upon an Inadequate Examination System In the other older states the apprenticeship system was permitted to de- velop for a time along its natural lines. Before it reached the elaborate stage attained in New England, however, courts or legislatures inter- vened, not so much to check as to guide and assist professional control. At a comparatively early date the state determined the period of appren- ticeship that must be served under a member of the profession. The state likewise organized an examining system, the actual administration of 1 This latter development was contrary to Jefferson's intention. See letter to Wythe, quoted below, page 404. 2 See above, page 69. INADEQUATE EXAMINATION SYSTEMS 99 which was committed to practitioners. For a time there was some hesita- tion as to the relationship between these two types of educational test. In New Jersey between 1752 and 1767, and in South Carolina between 1785 and "1796, the examination system existed — as many years later in Massachusetts — as an alternative to the requirement of several years clerkship. Very promptly, however, applicants were obliged to satisfy both tests. The early development of this cumulative requirement in- fluenced later developments in New England and in the West; and everywhere the democratic reaction showed itself in two ways : first, in a tendency to drop or forbid the apprenticeship requirement, leaving only the newer examination system in force; second, in the failure to construct adequate examining machinery. The examination was con- ducted either by the judges themselves, as under the later Virginia plan,^ or at best by a committee^ or committees' appointed by the courts. Mere casual designations of lawyers who happened to be present in the court sometimes developed into standing committees not distinguish- able for practical purposes from permanent boards. Doubtless they were intermittently zealous in the performance of their duties. The capital feature, however, of the colonial Virginia plan — a single board, the members of which were entitled to compensation for their labors — was omitted. Thus, in one way or another, the principle of a supplementary ex- amination, conducted by the profession itself, disappeared. In its place arose an independent examination, conducted by the state. The impor- tant educational test was no longer, as in all other countries, evidence of having been in contact with practitioners or schools during a defi- nite term of years. Instead, we have the notion, peculiar to this coun- try, of a " bar examination " as being on the whole sufficient in itself, even though it be sometimes reinforced by a study requirement. Courts or their committees are supposed to be .able, by a process of tasting, 1 North Carolina after 1760, Georgia after 1784, Maryland from an early date, and prevailingly in New York from as early as 1787. So also New Jersey from as early as 1752, South Carolina from as early as 1785, until superseded in both states by com- mittee examinations. 2 New Jersey after 1805. Until 1837 this committee was appointed by the Supreme Court from among the Serjeants; thereafter from the counsellors. 3 Pennsylvania and Delaware from an early date. South Carolina after 1796. Com- mittee examinations were inaugurated by the New York Supreme Court, so far as concerned admission to its own bar, in 1830, and were employed to some extent by the Court of Chancery and the local courts ; they never took root, however, as did the county board system in Pennsylvania. 100 BAR ADMISSION IN GENERAL to decide what applicants have been sufficiently well baked in some edu- cational oven. The purely theoretical distinction between the old and the new ideas must not be stated too broadly. As lay judges disap- peared, the bench became definitely a part of the profession as well as an organ of the state. Examinations conducted by judges are still examinations conducted by lawyers. This is even more obviously the case where the committee or board system has been introduced. If, finally, the requirement of a prescribed period is retained or revived, we have a system outwardly resembling that from which we depai-ted. There still remains the important distinction,however,that the examin- ing machinery is organized and controlled by the state. The profession is no longer an imperium in imperio entrusted as a whole with impor- tant functions closely connected with our political life, and — the better to accomplish this end — permitted to determine its own membership. Government acts now on the individual lawyer. His personal relation- ship to the state is emphasized. The official obligation of judges, of examining committees, and of the ordinary practitioner, supersedes, in all cases of conflict, the professional bond. The individual lawyer has ceased to be responsible solely to his professional brethren while the pro- fession itself is responsible to the state. The middle element of corpo- rate responsibility and control has been short-circuiled. It is a general tendency of governmental development to cut out, in this manner, what in a very broad sense may be termed feudalistic remains, and to get down to the individual. If we were to become a democratic community in fact as well as in name, it was necessary for us to take the action we did with regard to lawyers. There is no reason why the state, having destroyed professional responsibility, should not build up educational standards of its own. Prior to the Civil War, however, these were not democracy's primary concern. This was the era of broadening suffrage, removal of property qualifications for office, rotation in office, attacks upon the United States Bank, destruction of privilege in many forms. Hence both the willingness to regard an unsupported bar examination as sufficient protection for the community, and the failure to provide adequate machinery even for this. Constructive work was to come later. 4. Unpaid Boards or Standing Committees The first effort to improve the examining machinery took the form of substituting for direct judicial examination a system of referring ap- UNPAID BOARDS OR COMMITTEES 101/ plicants to uncompensated boards or standing committees. In Penn-I sylvania, Delaware, Vermont, and possibly in certain Connecticut coun- ties, this practice had never been abandoned. Shortly before the Civil War it was revived in Maine, and was substituted for the decadent court bar system in Rhode Island. It was introduced also for a short time into Illinois (for that one of the three "grand divisions" of the state which included Chicago), and into Louisiana (for New Orleans only). During the decade beginning 1860, a few far western territories took up the idea. As late as 1870, however, there seem to have been not more than nine jurisdictions that contained what could by any stretch of the imagination be termed standing local committees or boards, while a centralized examining body is i^nown with certainty to have existed only in Rhode Island; the New Jersey eighteenth century committee of counsellors was soon quietly to disappear, if it had not already done so. Everywhere else, either a single court operated directly, or — in New Hampshire and Indiana — there was no educational test, or — in twenty- nine jurisdictions — separate courts or judges conducted examinations, either personally or with the assistance of the attorneys present or of ad Aoc committees."^ During the following decade a few additional states introduced permanent examining bodies.^ Written examinationsexisted in New York, and in parts of Massachusetts and Illinois.' Pennsylvania had a preliminary examination upon general education, at least in cer- tain counties. 1 The line between an ad hoc committee, appointed by a court on tiie spur of tlie moment to give a perfunctory examination to applicants for admission, and a stand- ing committee that takes its responsibilities more seriously, is not always easy to de- termine. Including doubtful cases, the jurisdictions that in 1870 had something in the nature of special examining machinery were Pennsylvania, Delaware, Connecticut, Vermont, Maine, South Carolina, Colorado, Montana, New Mexico and (central com- mittees) New Jersey and Rhode Island. For contemporary judgments as to the worthlessness of the prevailing system of bar examinations, see Wellman, F. L., "Admission to the Bar," 15 American Law Review (1881), 295 ; and Hunt, Carleton, " Report of the Committee on Legal Educa- tion," 4 R^. Am. Bar Ass. (1881) 237. ^ Massachusetts 1876 ; Maryland (for certain courts only) 1876 ; New York 1877 ; New Hampshire (central committee) 1878 ; Ohio (central committee) 1879 ; Louisiana 1880. By this time also the local Appellate Courts, to which the Illinois Supreme Court had delegated the control over admissions granted to it by the legislature, usually exer- cised their powers through committees, and applications in the District of Columbia were customarily referred to a committee. 3 Traces of a written examination are found also at this date in Nevada and Idaho. The earliest written bar examinations in the United States seem to have been those instituted by the Massachusetts Court of Common Pleas, between 1855 and 1859, for applicants who could not show three years study. 102 BAR ADMISSION IN GENERAL 5. Central Examining Boards Financed out of Applicants Fees The machinery described in the preceding section was still obviously ineffective. Meanwhile, however, there had been an important contem- porary movement in England to improve all branches of education and public life by requiring stringent examinations of all applicants for aca- demic degrees or for official positions.^ This movement had its most important reverberation, on this side of the water, in the agitation for civil service reform, which dates from this period; but in a broader way it helped to bring "examinations" in general into fashion. These were regarded as a sort of educational and political cure-aU for our ills. Less in a spirit of conscious imitation than because this sort of thing was in the air, the strengthening of bar examination machinery came to be considered as, on the whole, the most important reform of which the legal profession stood in need as a means for ensuring effi- ciency in its members.^ Along with this general and somewhat exag- gerated emphasis upon the examination came the realization of the particular step that was needed to make it effective. This was, of course, to establish a central board, whose members should be held to their duties by appropriate financial arrangements. This development first occurred in the small state of New Hamp- shire. In 1872 the Superior Court, having finally regained from the le- gislature power to enquire into the "suitable qualifications" of appli- cants, attempted to revive the old county bar recommending system. Since this proved ineffective under modern conditions, the court ruled in 1876 that applicants were to be examined by itself or by a committee appointed by it. In 1878 this committee was converted into a perma- nent board, and in 1880 it was allowed to finance itself out of apph- cants' fees. Thus quite unconsciously the identical machinery that Jef- ferson had abandoned in Virginia was reproduced, a century later, in New England. 1 The principal events in the English examination movement were the throwing open of the London University examinations in 1858, the strengthening of the solicitor's examination in 1860, and the introduction of competitive examinations for the civil service in 1870. 2 The substantial identity of our early democratization of the bar with the theory of rotation in office (efforts to prevent the development of a bureaucracy), and the fur- ther identity of the movement to strengthen bar examinations in this country with the introduction of Civil Service reform ideas, seem not to have been generally rec- ognized. Compare, however, as to this latter connection, Wellman, F. L., "Admission to the Bar," IS American Law Review (1881), 315, and White, Colonel Robert, West Virginia Bar Association Proceedings, 1889, p. 52. CENTRAL BOARDS FINANCED OUT OF FEES 103 By 1890 three other states — Ohio, Wisconsin and Connecticut — with some variations of detail, had inaugurated similar systems. The Ohio Supreme Court in 1882 followed the same course as the New Hampshire tribunal by allowing compensation to its own recently es- tablished centralized examining committee. The Wisconsin legislature in 1885, oh the other hand, left the decentralized admission system of this state as it was, but required all applicants to be referred to a com- mittee appointed by the Supreme Court for examination, before re- turning to their respective courts for formal admission.^ In these three states the committees were appointed annually. New Jersey, when it revived its uncompensated committee in 1881, was the first state to in- troduce the feature, common to administrative boards, of overlapping terms of office, with the object of preventing any sudden break in con- tinuity and tradition. The Connecticut Superior Court, in 1890, was the first to combine this feature with the principle of financing the board out of the fees of applicants. By 1890, then, reasonably satisfactory models for a permanent central examining board had been develbped by four jurisdictions out of forty- nine. New York's adoption of the idea in 1894 gave it a great impetus, and under the influence of the American Bar Association it has now come to be regarded as an indispensable feature of an orthodox bar ad- mission system. In 1917 central boards of bar examiners functioned, with many minor variations in form, in thirty-seven jurisdictions, or three-fourths of the total, usually with more or less adequate financial arrangements. Reasons for the ineffective operation of this now prevalent machinery will be set forth on subsequent pages.^ 1 Compare the licensing "wedge " driven by Virginia into its colonial " each court to each " system, page 97. 2 Pages 267-270, 408-409 ; and compare Chapter III, sec. 8. PART III RISE AND MULTIPLICATION OF LAW SCHOOLS CHAPTER IX LAW IN ANGLO-AMERICAN COLLEGES AND UNIVERSITIES PRIOR TO THE REVOLUTION 1. Part played by the English Universities in the Training of Lawyers IT heis already been pointed out^ that the connection between col- leges or universities and the law is far less intimate even to-day in the British Empire and the United States than in Continental Europe and Latin America. Visitors from France or Germany, from Brazil or the Argentine, have some difficulty in understanding why our univer- sities, which are, or ought to be, the natural home of learning, do not control education for the law. In so far as the many factors which have contributed to this state of affairs can be reduced to a single ultimate cause, it may perhaps be found in the remoteness of the British Islands from Rome, the great lawgiver of western civilization. When Europe grEidually reestablished ordered institutions after the chaos produced by the barbarian invasions, scholars preserved the tradition of the Ro- man law. They incorporated with it elements derived from local cus- tom, and were looked to by the authorities of the budding states to provide systemizations or codes of law. Soon there arose law schools possessing dignity and prestige. These combined with similar associa- tions of teachers or of students in medicine, theology and philosophy, to form universities which, in their typical form, consisted of these four faculties. For modem examples of the way in which rulers have leaned upon university-trained scholars to draft their laws for them we have the famous Code Napoleon, and the Civil Code adopted within the present generation by the German Empire, but this dependent atti- tude goes back to the much earlier "reception "of the Roman law, a,s it is technically termed: the adoption of this body of law, suitably modified, as the basis of legislation throughout Continental Europe. While the legislative authorities of the state have of course remained in ultimate control, the scholars, acting in a proposing or advisory capacity, have in a broad sense made the law. Important questions of public policy are determined by the state, but the technical shaping of the law is 'entrusted to experts. That the training of the lawyer should similarly be entrusted to those who make the law has — again with certain modifications — naturally followed. 1 Pages 11-14. 108 RISE OF LAW SCHOOLS The English universities followed those of the Continent in their interest in Roman law, but they never succeeded in imposing their legal conceptions upon the state authorities. Various partial explana- tions for their failure may be assigned. During a period when all Eu- ropean universities were still dominated by ecclesiastical influences, temporal rulers asserted their independence of the Roman Church somewhat earlier and more consistently in England than on the Con- tinent. Oxford and Cambridge enjoyed a lesser prestige than the early Italian law schools or the great University of Paris. Absentee rulers accorded a greater measure of responsibility to their own judicial ap- pointees — established, in short, what were essentially bureaucratic or- gans of government, which, proceeding with a characteristic devotion to precedent, built up the common law and fostered around their cen- tral courts their own system of training. As already suggested, perhaps British remoteness and British insularity provide the ultimate expla- nation for all these phenomena. The fact is more important than the reasons for it. Although, just as Continental law contains elements ab- sorbed from local custom, so English law has been tinctured with a Romanic infusion, nevertheless the basis of the two systems is entirely distinct. Roman law was never "received" in England and in countries which inherit from it. Instead, the common law, developing out of cus- toms and the decisions of the courts, became more and more firmly implanted. Practitioners and judges developed rules of precedent, with which legislatures, representing the dynamic element in lawmaking, later, in a more or less haphazard way, interfered. The universities, however, committed to the study of the Roman law, were sidetracked. They were neither asked to help, nor did they have any sympathy with a type of law so distinct from their traditional aims. A chasm developed between the barristers with their practical law, on the one side, and the universities with their academic interest in a body of law that had no pi-esent relation to reality, on the other. This chasm we are still engaged in slowly bridging. What made the chasm less complete than it otherwise would have been was the spirit of caste. In spite of Napoleon's sneer at England as a nation of shopkeepers, a strong social prejudice against trade ex- isted in the eighteenth century, and indeed long afterwards. Public- service professions, the emoluments of which were paid by the state — diplomacy, the army, the established church, the bench — were the oc- ENGLISH UNIVERSITIES AND LAWYERS 109 cupations suited to gentlemen. Now, while attorneys were undeniably tradesmen, supporting themselves like physicians and apothecaries out of the fees of private clients, barristers, on the other hand,, were cadet judges, so to speak. And until they were actually elevated to the bench, or to other state-paid offices, a convenient fiction enabled them, with full dignity, to accept private pay. They received not fees, but "hono- raria," not collectible by legal process. Meanwhile, the universities were also the special resort of the ruling class, and offered indeed at this time greater social than educational advantages to those who were, or who aspired to be considered, gentlemen. William Blackstone, the grandson of an apothecary, the son of a silk merchant, and himself suc- cessively barrister-at-law. Member of Parliament, judge of the Court of Common Pleas, and Knight, was a typical example both of progress in the social scale and of the manner in which university and law study were in fact commonly combined by being prosecuted by the same per- son. Under the loose rules of residence long in force both in the uni- versities and in the Inns of Court, he was registered with both simul- taneously. He received his academic degree of Bachelor of Civil Laws ^ from Oxford at the age of twenty-two, and his call to the bar (pro- fessional degree of barrister^) from the Middle Temple a year later. Even to-day this is the typical way in which university and law training are combined for admission to the English bar. If the universities do something more for the future lawyer than they did in Blackstone's student days, this still is not the principal reason why a university training for barristers is preferred. Entirely irrespective of any organic connection between the university curriculum and knowledge of the law, university life then as now supplied points of personal contact of social and professional value to the future lawyer. As Blackstone put it, "Gentlemen may here associate with gentlemen of their own rank and degree."^ The system encourages narrow class sympathies, arrogance 1 It may be well to remind the layman that in accepted legal terminology "civil" is used in three entirely distinct ways. As applied to courts, or in such expressions as "civilians," the "civil service," etc., it is used to exclude the military establishment. As applied to procedure, it refers to the ordinary courts of law and equity as distin- guished from those possessing criminal jurisdiction. As applied to law, when most accurately employed it refers to the Roman system of law or modern outgrowths of the same, as distinguished from the Bnglish common law, including equity, or as distinguished from ecclesiastical or canon law. 2 See below, page 164, and compare page 18. 3 Commentaries, Introductory Lecture. 110 RISE OF LAW SCHOOLS and toadyism, but also a sense of class responsibility or noblesse oblige — the seamy and the handsome side of caste tradition.^ 2. Blackstone and his Influence upon this Country Just before the loss of the American colonies, England had taken the first step toward coordinating the university curriculum with profes- sional legal education. Blackstone, at the age of thirty, abandoned for the time being the attempt to build up a London practice, and con- ceived the idea that he might profitably deliver lectures on the com- mon law in connection with professional work at Oxford. Five years later (1758), he became the first incumbent of a new university chair — the Vinerian professorship of English Law — and thus established the principle that the cultivation of the common law is a pursuit not be- neath the dignity of an ancient university. Blackstone's elaborate apol- ogy, in his Introductory Lecture, for regarding the common law as a proper ojccukmical study, should be read in full in order to appreciate how radical was this innovation. His ambitions went even further. He aspired to found a resident college for common-law students, similar to a civil-law college long maintained in Cambridge. He was not supported in this project by the university authorities, and resigned his pro- fessorship in 1766, but not before he had begun the publication of his Commentaries, the first American edition of which appeared in 1771— 72. This admirable systemization of the confused mass of English pre- cedents exerted a profound influence upon the legal development of this country. In the first flush of enthusiastic independence from the mother country, there was a strong movement to repudiate all traces of the English common law; and although it is now generally held '^ These expressions refer, of course, to England as it was before the War with Ger- many. In thus emphasizing the importance of the original English type of univer- sity as a means of establishing or confirming useful personal connections, there is no attempt to belittle the strictly educational value of this type of institution at its best, transplanted to this country in the form of the endowed college. Still less is it denied that among the merits of this type of education perhaps the chief is that it discourages the early specialization characteristic of the Continental university. In the conflict between cultural and vocational theories of education, which in one form or another is always with us, the writer strongly inclines to the former camp, be- lieving that however elusive and however difficult to ensure, some provision must be made in our educational scheme for other than bread-and-butter interests. On the whole, the English university stands most prominently for this ideal. The point that is here made is that the survival of the type through periods of decadence is ex- plained by the fact that it satisfied a natural social demand, even when it did not supply a broadly rounded education. BLACKSTONE'S INFLUENCE UPON AMERICA 111 either that this law never was really repudiated, or, to the extent that it was so, that it was subsequently again "received," scholars are stiU disputing as to precisely what they mean when they declare that the English common law persists in this country. It is hardly an exaggera- tion to say that what we actually took over from England was simply Black stone. The transition was effected somewhat as follows : The laity had a general idea that American law, so far as not embodied in constitu- tions, was to be constructed by the legislatures, and that that was all there was to it. Every uninstructed person naturally pictures the law as equivalent to legislation, even to-day. As a matter of fax;t, the judges were confronted with the practical task of rendering decisions in cases not covered by legislation. To some extent they tried to decide these cases by the light of reason and abstract justice, but soon felt the ne- cessity of leaning upon precedent as a more concrete and safer guide. Prior to 1789, however, no American law reports had been published, and for many years after this there was no great body of strictly Amer- ican precedents, published or unpublished. The judges were thus driven back upon English precedents. Had these not been recently system- atized, it is possible that, in our early patriotic reaction against every- thing English, the codifying spirit, already expressed in state consti- tutions, would have produced also statutory codes, behind which judges would not have gone. Had this taken place, our law would have been organized upon the Continental principle, according to which at least the general principles are found in legislation, and judicial discretion is limited to filling in details. The general content of the English com- mon law would have been incorporated into these codes in the same way as the European civil law had absorbed local customs. Blackstone, however, provided an admirably comprehensive, lucid and up-to-date systemization of the English common law, suitable alike as a reference authority for the courts and as a textbook for students. The easiest course to pursue was to follow him in all cases where constitutions or legislatures had not spoken. This original authority was then supple- mented by the actual English reports and by the gradually accumulat- ing body of American decisions. The legal fraternity were already ac- customed to this general manner of procedure, and the laity had no clear understanding of what was going on and were easily satisfied with any system that actually worked. Thus we perpetuated, or restored, the English tradition that judges, in their decisions, declare the main 112 RISE OF LAW SCHOOLS body of the law in the light of whatever precedents they choose to recognize, while the people, through their legislatures, merely express their superior will in regard to special topics in which they are particu- larly interested. Blackstone's Commentaries, especially after the publi- cation of St. George Tucker's Americanized version in 1803, continued, until hopelessly antiquated, to be the core of the whole system. 3. Lam in the Colonial Colleges At the time of the separation from the mother country, accordingly, the following tradition in regard to the proper relationship between a university and legal education was already implanted in this country : First, it was generally felt that, for those who aspired to reach the higher ranks of the profession, a university education was desirable. Secondly, the advantages to be derived from this education were pri- marily social and cultural; it was by no means contemplated that the university should undertake the technical training which the practi- tioner already provided under the apprenticeship system. Thirdly, the law had, however, recently come to be regarded as a fit subject for academic treatment; one to which the university might well devote greater attention than it had been in the habit of doing, both in the general interest of all its students and in the particular interest of those who might subsequently undertake professional law studies. This tradition we had to apply or adjust to our own cruder facilities of higher education as best we might. We had no university embracing, like those of Oxford and Cambridge, separate colleges united by a common bond. Nine meagerly endowed colleges, having no organic connection with one another, and separated by wide distances, were all that the new-bom country had to offer. The expansion of these units into complete institutions — the later binding together of these local institutions into national associations working together for a common end — all this was stiU far in the future. The first element in this English tradition — that a college educa- tion, irrespective of its content, is desirable — had already found ex- pression in the bar admission rules of at least two colonies. In New York, as early as 1 756, the rules, while not uniform throughout the state, usually required college graduates to study three yeai's under a counsellor as against a period of seven years for other applicants. In Massachusetts the Suffolk County rules of 1771 required all applicants LAW IN THE COLONIAL COLLEGES 113 to have a college education, or a liberal education equivalent thereto, before entering upon the period of office study. The second element of the tradition — that strictly professional training was the business of the profession itself — was assumed without question everywhere. Even in Virginia, although no requirement of a definite period of study has been found, aspirants for the upper branch of the bar who had not been to the English Inns of Court undoubt- edly studied law, as did Jefferson under George Wythe, in the office of a lawyer. It should be noted in this connection, however, that al- ready two technical professorships in medicine had been established — one in 1765 at Benjamin Franklin's College of Philadelphia, later to develop into the University of Pennsylvania, and one two years after- wards at King's College of New York, later Columbia University. Long before this, moreover, postgraduate professional work in divinity had been organized in the colleges.^ However fallacious is the analogy be- tween other professions and the law, this analogy has been a constant factor in our educational development. The early hospitality displayed by the colleges toward technical training in other lines should not be lost sight of in tracing the history of legal education. Finally, as regards the third traditional idea — that colleges should have something to say concerning the rules governing the relations between men — the announcement by Harvard, as early as 1642, of sec- ond-year lectures upon "Ethicks and Politicks at convenient distances of time," is significant both of the bond that was originally felt to exist between these two subjects, and of their early divorce, at least in aca- demic circles. Under the prevailing theological influences. Ethics, either under this name or under the labels of "Moral Philosophy" or of "Natural Law," easily established itself as an orthodox college sub- ject everywhere. Separate professorships were early instituted therein.^ Subsequently logic and metaphysics were added, and these chairs grad- 1 The Hollis Professor of Divinity at Harvard doubtless conducted postgraduate work from his first appointment inT731. Certainly in 1780 this graduate organization was fully established (Quincy, Josiah, History of Harvard University, 1840, I, 535; II, 259). William and Mary organized postgraduate professional work in divinity, dis- tinct from its philosophical schools, in 1727 (Tyler, Lyon G., Early Cowrses and Pro- fessors at William and Mary College, 1904, p. 2). All this, of course, was in the di- rect line of English tradition. ^ So in King's College in 1762, and again in 1773. The claim put forward in the Colum- bia law school announcement, that this latter chair of Natural Law, occupied for a very brief time by a clergyman, was "the first professorship of law in America," is misleading. 114 RISE OF LAW SCHOOLS ually developed into our modern philosophical departments. "Poli- ticks," on the other hand, either disappeared entirely, as at Harvard, or gradually cut loose both from morality and from philosophy and developed along lines of its own. In the first curriculum of King's Col- lege (1755) we find "the Chief Principles of Law and Government, to- gether with History, Sacred and Profane ;" these studies, together with the ethics group ("Metaphysics, Logic and Moral Philosophy with something of Criticism") constituted the entire curriculum of the fourth year. The plan of study adopted for College of Philadelphia seniors in 1756 differed from this principally in being somewhat more detailed. Civil law was now specifically mentioned in the politics group; and the object of these studies was clearly stated. They were designed to bring the student " to a knowledge and practical sense of his position as a man and a citizen."^ In 1763 King's changed its president and its pol- icy, and deluged its students with classics in their senior year. Place was found, however, for "Grot: de B. and P. or Pufendorf."^ Tliis was apparently the first appearance of international law in the Ameri- can college. In 1774) King's College received a grant of land from Gov- ernor Tryon (on which it never realized) for the pui-pose of establish- ing "Tryonian Professors, the first Professor so to be appointed to be a professor of the MunicipaP Laws of England." Superficial or abortive as were all these experiments, it is none the less significant that in Philadelphia and New York the main tnank of academic education had already sent forth a political branch, and that this branch had itself begun to ramify. Systematic instruction in law, as a subdivision of poli- tics, now distinguished from ethics, was at least an idea familiar to academic thought when the doors of the colonial colleges were closed by the Revolution.* 1 Logic and metaphysics were first to be studied in order to develop the student's powers of thought. Then the main object of the senior year was to be secured " by a course embracing ethics, natural and civil law, and an introduction to civil history, to laws and governments, to trade and commerce." 2 Grotius, Dejure belli et pacis, 1635; Pufendorf, De jure naturae et gentiwm, 1672. 3 The layman must again be warned that ' ' municipal law," in the sense brought into vogue by Blackstone, does not mean the law of municipalities. In ordinary language it means the law of the state or nation, as distinguished from international law, natural law(ethics or philosophy), etc. Blackstone himself recognized the ambiguity of the term, but adopted it as less misleading, when apphed to England, than "civil law." Legal terminology is in a shocking condition. Compare, for instance, the various meanings that are attached to the word "practice." * In the other colleges, including Harvard, this political branch was not cultivated at this time, except in so far as it might be incidentally touched upon under ' ' Ethics." THE PROBLEM AFTER THE REVOLUTION 115 4. The Problem presented after the Revolution What, then, was to be the line of development after the Revolution? Was the English tradition to be preserved, that an academic educa- tion, whether or not it embraces political studies, is desirable but not essential for all good citizens — lawyers among the rest — but that actual professional instruction may best be left to the practitioners? Or, following the precedent established in medicine and theology, may some or all of this technical training be given under academic auspices, and a new complex institution thus arise, properly to be termed a uni- versity? And, in case the latter course should be followed, what relation should obtain between the old college and the new professional work? Should the college continue to be merely an optional preliminary to professional work, as in the case of medicine? Or should the univer- sity's professional work be strictly postgraduate, as was apparently the tendency in theology? And finally, to the extent that the university might properly attempt to displace the practitioner in the field of pro- fessional education in the law, what should be the policy of the state in its bar admission requirements? Should it merely place the univer- sity, in its competition for students, on an equal footing with the prac- titioner, giving it an opportunity to prove its claim as to the superior efficacy of its methods ? Or should university law preparation be en- couraged as inherently superior to office work, and if so, to what extent and how? Even to-day the public, the profession and the universities are far from having reached an agreement in regard to more than one of these problems. It is now universally admitted that at least a part of the process of preparing applicants for the bar is a task that the university may properly assume. The following chapters will show how difficult it was to establish even this proposition against the conservative forces of tradition. The four main branches of the Harvard tree were first, Latin ; second, Greek ; third. Logic, Metaphysics, Ethics; fourth. Natural Philosophy, Geography, Astronomy and the Elements of Mathematics — each confided to a separate tutor. There was also a professorship in this latter branch, in Divinity, and in Hebrew and other Ori- ental languages. On the general question of the gradual emergence of " law " as a topic distinct from ethics, poUtics, etc., see below, pages 135 and 300, note 1; and compare pages ]48, US, 296 and 302. CHAPTER X JEFFERSON'S WORK IN VIRGINIA AND KENTUCKY 1. William and Mary College TO Thomas Jefferson belongs the credit of initiating university instruction in professional law in this country. His task was the easier for the reason that the apprenticeship system was not so firmly established in Virginia as in the northern states; but his chief asset was his own daring and constructive mind, which had no respect for tradi- tion as such and erred, if at all, on the side of too broad and too origi- nal conceptions. Believing that even private law study was preferable to office work,"^ and cherishing a comprehensive plan, only partially realized, for the reorganization of education in Virginia, he first revolu- tionized, in 1779, the organization of his alma water, William and Mary College. His conception of a university, in so far as it owed anjrthing to foreign models, followed the later Continental rather than the later English type: the various faculties were thought of as coordinated, rather than as branching out of a central college of arts or philosophy. With characteristic audacity, however, Jefferson departed from the or- thodox four faculties — Philosophy, Theology, Medicine and Law. Dis- carding altogether the already established theological faculty along with all classical instruction, he accepted Medicine and Law, while Philosophy he split into four parts, thus securing a sjonmetrical coor- dination of six faculties. Finally, in order to adapt this scheme to the small resources and charter restrictions of the college, each faculty was reduced to a single professorship, termed, in accordance with local tra- dition, a " school." One of these six faculty chairs, retained by the presi- dent. Bishop Madison, included "Moral Philosophy and the Laws of Nature and of Nations." Another, filled by Jefferson's law teacher and fellow Revisor of the Virginia statutes. Chancellor George Wythe, was the school of "Law and Police." Wythe's course included not merely lectures on municipal (professional) law, of which Blackstone eai-ly be- came the basis,^ and moot courts, an inheritance from the English Inns, 1 Outlining, in 1790, a course of study for a young relative, he writes : " It is a gen- eral practice to study the law in the office of some lawyer. This indeed gives to the student the advantages of his instruction. But I have ever seen that the services ex- pected in return have been more than the instructions have been worth." Writivf/s, V, 180. 2 When John Marshall attended the school in 1780, the lectures seem to have been WILLIAM AND MARY COLLEGE 117 but also lectures on government and moot legislatures, designed to train students in parliamentary law. Practical law and practical poli- tics, in short, already differentiated but still combined, were fully recog- nized as fit subjects to be pursued within academic shades, under the instruction of a practitioner. International law was pushed to one side as an appendage to the related topic of ethics. The earliest recorded law degree in the United States was conferred here in 1793 upon Wil- liam H. Cabell, later Governor of the state, and presiding judge of the Court of Appeals.-' This school, which, except as temporarily closed by the Revolution- ary War, continued in existence till 1861,^ exerted its greatest influ- ence upon legal education through a published work. St. George Tucker, who succeeded Wythe as professor of law in 1789, explains, in the in- troduction to his annotated edition of Blackstone, that he had retained the latter as the basis of his law school lectures because he had no time to devise a systematic classification of his own. And indeed the Commen- taries, with notes adapting it to American usage, provided for the time being a sufliiciently satisfactory textbook of American law. Tucker's work, published in 1803, fixed the Blackstone tradition in this country, and by ostensibly compressing all legal knowledge within the covers of a single book, undoubtedly discouraged the organization of law schools elsewhere. It made the apprenticeship method of teaching law practi- cable and sufficient. Indirectly, however, the William and Mary school doubtless stimulated early abortive attempts, shortly to be described, to organize university law schools in the middle states. And two other successful southern schools are directly traceable to this source. a mere running commentary upon legal heads arranged — as commonly in reference compilations — alphabetically. See digest of Marshall's notes in Beveridge, Albert J. , Life of John Marshall, 1916, 1, IT*. In 1784, however, Governor Jefferson told Presi- dent Stiles of Yale that Blackstone was the basis of the law lectures {Literary Diary of Ezra Stiles, 1901, III, 126). 1 Forastudent's description of the moot courts and legislatures, as conducted in 1780, see 9 William, and Mary College Quarterly (1900), 80. President Lyon G. Tyler's Early Courses and Professors at William and Mary College, 1904, is the best general account of the school. See also references collected by Warren, pp. 343 ff., and"Laws and Regulations, 1837," Bulletin of the College of William and Mary, vol. XI, no. 2 (1917). 2 Wythe had about 40 students in 1780. In 1839, the year of the college's greatest prosperity prior to the Civil War, about 30, out of a total attendance of 140, were law students. The school was revived in 1920. 118 RISE OF LAW SCHOOLS 2. Transylvania University In 1799 Transylvania University at Lexington, Kentucky, appointed a William and Mary graduate, George Nicholas, "Professor of Law and Politics." The professorship seems to have remained in more or less con- tinuous existence until 1879. Henry Clay was one of the early incum- bents. Nothing definite is known as to its curriculum; but its title and its historical origin sufficiently indicate its character. For a gener- ation this was the only organized centre of legal education west of the Alleghanies.'^ 3. University of Virginia In Virginia itself, Jefferson's educational plans culminated in the open- ing of the University of Virginia in 1825. His original design, which was merely an expansion of his William and Mary scheme, called for ten distinct professorships or "schools," three of which were to cover the field of what that eminent Harvard graduate and independent member of Jefferson's "Republican" party, Mr. Justice Story of the Supreme Court of the United States, had recently described as "moral, political and juridical science."^ These three schools corresponded roughly with Story's analysis. Private ethics was to be combined with general grammar, rhetoric, and belles-lettres and the fine arts under a professor of "Ideology." A professor of "Government" was to give instruction in the Law of Nature and Nations, Political Economy and "History, being interwoven with politics and law.'' Coordinate with these and with the seven other schools, a professorship of Municipal Law was to be established. Practical exigencies, however, reduced the three professorships concerned with the laws of human conduct to two, one of Ethics and Moral Science and one of Law and Politics.' The 1 It started with about 19 students. In 1821-23 its attendance was 49, as against Litchfield's 26. In 1842-43, under George Robertson, it had 75 students, being sec- ond only to Harvard. See Peter, Robert and Johanna, Transylvania University, Its origin, rise, decline and fall, 1896; and Lewis, A. F., History of Higher Education in Kentucky, 1899. Transylvania (or Kentucky University, as it was designated from 1865 till 1908) later revived its law school from 1892 till 1895, and again from 1905 till 1912, when the attempt was definitely abandoned. " In his review of David Hoffinan's Course of Legal Study. See below, page 124. Note the expansion of Harvard's old formula of "Ethicks and Politicks," by the subdivi- sion of the second element. 3 The complete scope of the law school course, as enacted by the Rectors and Visit- ors in 1825, just prior to Jefferson's death, was stated as follows: "In the School of UNIVERSITY OF VIRGINIA 119 latter chair was filled in 1826, after failure to secure a more distin- guished incumbent of sound Republican views,^ by a middle-aged prac- titioner, John T. Lomax. Under him and his successors both law and politics — or, to use the modern term, government — continued to be taught together, as in William and Mary. As the field grew too large to be cultivated by one man, an additional professor, specializing in Constitutional Law, was appointed in 1851, and the old school or sin- gle professorship thus became the present department of law of the University of Virginia. International law, under the Blackstonian in- fluence, likewise continued to be ofl^red by the law department rather than by the college. Political economy and history, however, were crowded out of the law course, being given in other schools when given at all.^ For many years a law student was encouraged, though not re- quired, to register in more than one school of the university.^ Law shall be taught the common and statute law, that of the Chancery, the laws Feudal, Civil, Mercatorial, Maritime, and of Nature and Nations; and also the prin- ciples of Government and Political Economy." Compare Appendix, pages 454-456. 1 In a letter addressed to Madison in 1826, Jefferson wrote : " In the selection of our law professor, we nhist be rigorously attentive to his political principles." He observes that lawyers had been originally whigs, but that "after the honied Mansfieldism of Blackstone became the students' hornbook, from that moment that profession (the nursery of our Congress) began to slide into toryism, and nearly all the young brood of lawyers now are of that hue. They suppose themselves indeed to be whigs, because they no longer know what whiggism or republicanism means. It is in our seminary that that vestal flame is to be kept alive ; it is thence to spread anew over our own and the sister states." See Adams, Thomas Jefferson and the University of Virginia, pp. 137-140, both for the passage, and for a discussion, appropriate to present day conditions, of the extent to which university authorities are justified in drawing political lines in making faculty appointments. 2 See below, pages 146, 296, for the gradual transformation also of "Constitutional Law " from a governmental into a technical legal topic, in other law schools ; and see pages 155, 302, for the gradual conformity of this school to the prevailing practice. 5 Herbert B. Adams' Thomas Jefferson and the University of Virginia, 1888, is the best authority on the early University of Virginia law school. For Jefferson's views on legal education, in addition to the references found here, see Writings of Thomas Jefferson, ed. P. L. Ford, 1892-99, V, pp. 172, ISO. See also Patton, John S., Jefferson, Cabell, and the University of Virginia, 1906. CHAPTER XI UNIVERSITY EXPERIMENTS IN THE MIDDLE ATLANTIC STATES 1. Columbia College A MOST ambitious organization of higher education was projected in New York in 1784. Old King's College was to be revived under the name of Columbia, and, together with schools and colleges subse- quently to be established, was to form part of the state- vnde and state- controlled " University of New York,'' governed by a Board of Regents. Columbia itself was to add to its Arts Faculty the traditional profes- sional faculties of Divinity, Medicine and Law. This latter was to con- sist of three professors: one of "the Law of Nature and Nations;" one of "the Roman Civil Law;" and one of "Municipal Law." The project failed for want of funds. In 1787 Columbia regained its independence under its separate board of trustees, and the "University of the State of New York'' (as the State Board of Regents is still officially termed) was relegated to its present position of general administrative control, more and more restricted to non-collegiate education. So far as legal education was concerned, there was then adopted a plan resembling that of Jefferson, but less symmetrical, in that the traditional college was not split up but retained its unified organization. The professor of Geography and German in the college. Dr. Gross, had already devel- oped a comprehensive history course. Moral Philosophy was also en- trusted to him, and under this title he organized a course which included government and international law. In addition, a young Federalist pol- itician — -James Kent — was appointed professor of law, and in 1794 began delivering a course of lectures. Like Blackstone, Kent considered the municipal law (including both government and the common law) to be his special province, but he prefaced his discussion of this with general lectures which encroached somewhat upon his academic col- league's field. Already there was discernible that duplication of effort that appears in several American universities to-day — the teaching of identical subjects from two different points of view in the government or "political science" department of the college and in the separately organized law school. Following Blackstone also and the Philadelphia experiment described in the next paragraph, which antedated his own lectures by a few years, Kent entertained no design of appealing only COLUMBIA COLLEGE 121 to future law practitioners, nor of conducting a complete law course even for them. "Nothing I apprehend is to be taught here," he an- nounced in his introductory lecture, "but what may be usefully known by every Gentleman of Polite Education, but is essential to be known by those whose intentions are to pursue the science of the Law as a practical Profession." Somewhat inconsistently, however, with the pre- servation of the academic ideal, the lectures were thrown open to out- siders, who constituted the bulk of such few students as attended. The failure of the experiment may be ascribed, partly to the fact that Kent was drawn away from legal education to more important pursuits; partly to the fact that in this mere stop-gap work he wa^ not seriously pursuing a single definite mission.-' Resigning his professor- ship in 1798 to begin his distinguished career on the bench, he returned to Columbia in 1824 to revive his lecture course. After a j^ear and a half, however, he tired of the labor, and although his name was carried on the catalogue till his death in 1847, he delivered no more lectures. He thus found time to produce the first systematic treatise upon Amer- ican law, conceived in the general spirit of Blackstone's Commentaries but independently composed, as distinguished from the mere adaptation of Blackstone that St. George Tucker had already produced a generation previously.^ The first edition of Kent's famous Commentaries appeared in four successive volumes between the years 1826 and 1830. Columbia, Hke William and Mary, exerted its greatest influence upon legal edu- cation through stimulating productive scholarship, and thereby carried the development of American law one stage further.' 1 During his first academic year of 1794-95 he dehvered a course of twenty-six lectures to seven college students and thirty-six lawyers and law students not connected with the college. The following year he delivered thirty-one lectures to two students be- sides his own clerk. The following year he had no students at all, the next year six or eight. Apparently the design was to cover the enjtire course in a single year. The outline of the course published in 1795 contains 37 lectures : 3 " Preliminary Disser- tations ;" 10 " On the Constitution and Laws of the United States " dealing with the organization of the federal government, including practice in the federal courts ; 94 ' ' On the Constitution and Laws of the State of New York," of which the first three dealt with what we should to-day term governmental organization ; the remainder with the usual common-law heads. ^ See above, page 117. Kent's title to priority in the production of a systematic treatise upon American law, modeled in a general way upon Blackstone, rests upon the ex- tent of the field that he attempted to cover. Zephaniah Swift (see Appendix, page 431), in his System of the Laws of the State of Connecticut, 1795, was the first to per- form the same service for the law of a single state. 5 The Law of Nature and Nations continued to be taught as an academic study. In 1810, under the title of ' ' Principles of Public Law," these subjects were included in 122 RISE OF LAW SCHOOLS 2. University of Pennsylvania Similar attempts in Philadelphia and Baltimore produced similar but less important results. Benjamin Franklin's College of Philadelphia, revived in 1789 and merged two years later with the new University of Pennsylvania, inaugurated in 1790 a three-year law course under James Wilson, Justice of the Supreme Court of the United States — Philadelphia being at this time the national capital. Three lectures were to be delivered weekly at six o'clock in the evening, with addi- tional so-called law exercises every Saturday. The opening lecture was attended by President and Mrs. Washington, the members of Congress and other persons of distinction. The non-vocational Blackstonian aim of the course was expressed in the following language: "The obvious design of the plan is to furnish a rational' and useful entertainment to gentlemen of all professions, and in particular to assist in forming the legislator, the Magistrate and the 'Lawyer.'" In connection with this design, Wilson was the first to attempt the ambitious project which even Kent later could not quite complete — the restatement of Blackstone in American terms. He wasted the entire first year of his lecture course, however, upon introductory generalities, including international law. During the second year he covered the field of governmental organization in the United States, as a subdivision (following Blackstone) of the Law of Persons; he started also upon Criminal Law, but before the close of the year he abandoned the course, though until his death in 1798 he retained his nominal position as university professor. In 1817 the law course was revived under Charles W. Hare, who planned to devote three successive years, first to "Natural Jurisprudence," second to "International Jurispru- the department of " Science of Mind and Morals." President Duer (1830-42), himself a lawyer, lectured upon Constitutional Law. For the work of William H. Betts and Francis Lieber, leading up to the revival of technical instruction under Dwight in 1858, see below, page 158, and compare page 333. See Kent's Introductory Lecture to a Course of Law Lectures, 1794; Dissertations, being the Preliminary Part of a course of Law Lectures, 1795 ; Lecture introductory to a Course of law lectures, 1824; Commentaries on American Law, 1826-30; for evidence of how closely his completed work conformed to his original outline, prepared thirty years before. For general references, see History of ColumJna University, 17S4-1904, especially pp. 64, 78, 91-92, 335 ff. ; also William Kent's Memoirs and Letters of James Kent, 1898, p. 77 ; and, for the later Dwight school, Dwight's own account in 1 Green Bag (1889), 141, " Columbia College Law School, New York;" Matthews, Brander, These Many Years, 1917, pp. 133-137; Kenny, Courtney, 36 N.S. Journal of the Society of Comparative Legislation (1916), 185. UNIVERSITY OF MARYLAND 123 dence," third to " Jurisprudence of the United States and Pennsylva- nia." After a single year, however, Mr. Hare's health gave way, doubt- less under the strain of doing justice to this programme. By 18S4< the chair of law had been formally abolished.^ 3. University of Maryland In some ways the most interesting of these middle states experiments was that conducted in Baltimore. In the two other large cities the at- tempt to graft a professional law faculty upon an older academic col- lege was an extension of a movement already started in medicine. In Maryland, however, no strong academic college antedating the Revo- lution existed. An attempt in 1784 to create a state university which should embrace, somewhat on the plan of the contemporary "Univer- sity of the State of New York," two colleges recently established on the western and on the eastern shores, was definitely abandoned in 1806. Meanwhile, in several large cities local medical associations had begun to assume control over education for their profession, in somewhat the same manner as the county bar associations of New England, and in- deed had proceeded farther in this direction than the American bar has ever gone. They not merely prescribed rules under which their individual members should train apprentices, but also — like the lawyers later in England and Canada— they organized central lecture courses orschools of their own. With some confusion of terminology, due to varying Eu- ropean precedents, these medical associations were sometimes known as "faculties" or "colleges;" the latter term was naturally applied to the developed school, especially as it assumed visible form in the shape of a building. In 1807 the College of Physicians and Surgeons arose thus in New York, and eventually ousted Columbia College from the field of medical education, only to be itself later absorbed into the greater Columbia University. Later in the same year an incorporated College of Medicine of Maryland started in Baltimore in the same way, and in 1812 the attempt was made to expand this into a university. A charter 1 See Klingelsmith, Margaret C, "History of the Department of Law," in Univer- sity of Pennsylvania Proceedings at the Dedication of the New Building of the Depart- ment of Law, 1900, pp. 213 ff.; also Wood, George B., " History of the University of Pennsylvania from its Origin to the Year 1827," 3 Memoirs of the Historical Society of Pennsylvania (l»3i), 109. Wilson's lectures, so far as completed, were published in 1804. They also consti- tute the bulk of James DeWitt Andrew's Works of James Wilson, 1896. The law department was revived under Judge George Sharswood in 1850. 124 RISE OF LAW SCHOOLS was secured for the University of Maryland, which was to be organized by having the Medical Faculty annex to itself the three other tradi- tional faculties. Collectively, the members of all four faculties were to constitute the corporation under the name of Regents with a general governing, power; each faculty, however, was to be self-perpetuating and with power to appoint its own dean, professors and lecturers. The attempt to build up faculties of Theology and of Arts and Sci- ences came to nothing.^ A Law Faculty of six was, however, promptly appointed, and one of their number, David Hoffman, set himself, with commendable industry and conscientiousness, to the task of organizing the prospective curriculum. It took him four years to complete his task. Publishing the result in 1817, under the title of "A Course of Legal Study," he had the satisfaction of having it declared by Mr. Justice Story, in an elaborate contemporary review, to be "the most perfect system for the study of the law which has ever been offered to the public."^ The course was organized under thirteen titles, and included not mei'ely Moral and Political Philosophy, what we should to-day designate Government, and the various heads of practitioners' law, but also International Law, Roman Law and Political Economy.^ Story estimated that it would take seven years to complete the course. The poverty of the so-called university not permitting instruction to be offered at once, especially in face of competition from Judge Dorsey's private school, Hoffman waited four years more. Then, in 1821, after a loan from the legislature had put the medical school upon its feet, he published a syllabus outlining a slightly modified course* in law, which he proposed to cover in two years of ten months each, lecturing one hour daily. Instruction was to begin the following autumn in case a sufficient number of students should apply. It was not until Judge Dorsey's death, however, in 1823, that Hoffman delivered his first lecture, and it took him much longer to cover the ground than he had planned. At the beginning of his third year he was still lecturing upon his third title. To supplement the lectures proper, he had attempted to build up 1 Much later, St. John's College of Annapolis, one of the constituents of the older university, was for a time affiliated in a nominal union. ' Story's review, originally published in the North American Remew of that year, is reprinted in his Miscellaneous Writings, 1835, pp. 223 fF. 5 See Appendix, pages 464-466. * Political Economy, and the Constitutions and Laws of the Several States, were dropped. Legal Biography and Bibliography and "Professional Deportment" (legal ethics) were added. UNIVERSITY OF MARYLAND 125 three supplementary organizations: a "Maryland Law Institute" (quiz classes); a "Rota" (debating society); and an elaborate system of moot courts, which he hoped would attract junior lawyers as well as students — an idea traced by himself back to the English Inns of Court, but obviously immediately derived from the Philadelphia Law Academy.^ Hoffman's hopes were disappointed. At the end of the year he ex- presses fear that "the whole of our plans ... is to be eventually de- feated by the want of suitable encouragement." At this juncture the univei-sity property was seized by the state, and the faculties ousted from control; and although Hoffman, like the medical professors, ac- cepted appointment from the new trustees, a controversy arose over the sale and delivery of his law library to the university. He ceased lecturing in 1832, and shortly thereafter fled to Europe, leaving an unsatisfied judgment behind him. In 1836 he brought out a revised edition of his Course of Study, expanded and brought up to date. In addition to his original thirteen titles, he included a list of nine aux- iliary subjects, among which were Geography and History, Oratory, Law Reform, Military Law and Logic. An appendix discussed note- books, moot courts and debating societies. The work, originally in- tended for students only, was now dedicated to the profession at large, and was in effect a systematized bibliography of every department of human knowledge that bore in any way upon American law. Judges and practitioners would find it useful for purposes of reference, while students or their teachers could plan appropriate courses of study by its aid. For those who wished to secure admission to the bar without waiting for the full six or seven years required to cover the entire course, three shorter courses, composed of selected subjects, were care- fully devised: one to occupy four years; one to occupy three years; one, stiU briefer, devised for country practitioners. Hoffman's breadth of treatment under each division of his work may be illustrated by a single example. The first of his readings under "Professional Deport- ment" (legal ethics) was the Proverbs of Solomon. The fundamental weakness of Hoffman's great design is revealed in his own introduction. American law was already expanding at such a rate that a systematic survey of the entire field became antiquated al- most as soon as it was published. In 1844, with his library and a testi- monial from Chief Justice Taney as a nucleus, he attempted to start a private law school in Philadelphia, but in 1847 he returned to Europe 1 Page 432. 126 RISE OF LAW SCHOOLS to gather material for a history of the world, and before his death in 1854 he had actually published this down to the year 573. His diffu- sive tendencies contributed to the failure of what was in any case a hopeless task — that of reforming legal education single-handed.^ 4. Untimely Nature of these Experiments It win be observed that academic authorities in New York, Philadel- phia and Baltimore were inclined from the beginning to bi'oaden the scope of organized higher education in these large cities. The funda- mental reason for their failure to build up university instruction in law at this time was that the apprenticeship system was still too firmly en- trenched. The members of the profession as a whole were satisfied with the system under which they themselves had been trained. Or, if they recognized that anything more was needed, supplementary lectures, given under bar association auspices, seemed to them sufficient.^ In New England conditions were similarly unfavorable, and in ad- 1 Apparently the only financial assistance extended to Hoffman by the University was to provide rented quarters, and to pay him $5000 for the library which he failed to deliver. His energetic publicity campaign included announcements, as pathetic as they were unprofessional, that his educational activities in no way diminished, but rather increased, his capacity to serve private clients. A full history of the University may be found in Cordell, E. F., Historical Sketch of the University of Maryland, 1891. The development of Hoffman's work may be traced in Judge Story's review of the first (1817) edition of his Course of Legal Study, already cited ; and in the following accessible publications by Hoffman : Syllabus of a course of lectures on law proposed to be delivered in the University of Maryland, 1821; Lec- ture introductory to a Course of Lectures ndw delivering in the University of Maryland, 1823; two additional lectures in the series, printed in 1825 and 1826; A Course of Legal Study, second edition, 1836. Under the ambiguous title of Legal Outlines, Vol. I, he published the substance of his lectures upon his first title, in 1829 ; this was reprinted in England, with slight changes, as Legal Outlines, 1836. In 1846, as an advertisement for his Philadelphia "Law Institution," he published an extract from his Course of Legal Study, under the title Hints on the Professional Deportm.ent of Lawyers with some Counsel to Laio Students. As a systematic treatise on legal ethics this antedated the better known work of Judge Sharswood. In 1839 the medical profession regained control of the University. By the vote of two surviving members of the Law Faculty this school was resuscitated thirty years later. 2 For unsuccessful attempts to accomplish this in Philadelphia and New York, see Appendix, pages 431, 432. In addition to the three experiments described in the text, Columbian College, in Washington, D. C. (the present George Washington University), opened a law school under Judge William Cranch and W. T. Carroll, in 1826, which was abandoned the following year owing to financial difficulties. See Stockton, C. H. , " Historical Sketch," 19 Records of the Columbia Historical Society (1916), 99, 124. UNTIMELY EXPERIMENTS 127 dition there was the less need for university instruction in law, for the reason that, as will appear in the following chapter, successful private law schools had been started. The New England colleges were slower, therefore, to enter the field of technical legal education, than were the institutions that had been started more recently in the middle Atlantic states. On the other hand, when they did take this step they profited much by the already established private schools, and so were enabled to succeed. These schools provided the real basis for what was to be the dominant type of university legal education in this country. CHAPTER XII EARLY PRIVATE LAW SCHOOLS THE early private lawschool was essentially a specialized and elabo- rated law office. It originated in New England, where the appren- ticeship system was most firmly established, spread from there into other states, and was eventually not so much destroyed as absorbed by the college or university law school, whose character it largely deter- mined. As a fuUy developed, self-conscious institution, announcing itself as such, it appeared slightly later than the early southern college law school. Unlike this artificial creation, however, it developed by imperceptible steps out of a practitioner's class and represents a more primitive type of educational organization. The two conditions requi- site for its appearance were, first, a reasonably large and accessible sup- , ply of prospective law students, among whom it could market its edu- cational wares; and second, an attitude in the profession favorable to specialization in legal education. Certain states continued at first the tradition, embodied in the English statutes, that it was unethical on the part of a single practitioner either to attempt to comer the profit- able educational market for his private gain, or to teach law so ex- tensively as to flood the profession. Suffolk County (Boston) practi- tioners in 1783 — all New Hampshire practitioners in 1805 — bound themselves to take not more than three students into their respective . offices. In these states the natural line of development was thus checked for a time. It was not until after Harvard had made its first unsuc- cessful incursion into the field of legal education that professional vigi- lance in Massachusetts relaxed and that this state fell into line with the general movement. 1. The Litchjield Law Sclmol Connecticut, immediately after the Revolution, had proportionally a much greater population, as compared with other states, than she has to-day.^ She was geographically accessible to students from other states. Her rules for admission to the bar, by prescribing a definite term of office clerkship, protected the practitioners in the educational monopoly 1 According to a U. S. Census Bureau estimate Connecticut had a population of 203,000 in 1780; greater than New York and greater than Rhode Island, New Hamp- shire and Vermont combined; about two-thirds the population of Massachusetts. THE LITCHFIELD LAW SCHOOL 129 which they enjoyed as a class; by not limiting the number of students in any office, they permitted free competition inside of the profession. Every lawyer received all the students he could get. The only limitations upon the size of his class were his own organizing and business-getting ability, and the leisure that was left to him from more important occu- pations. If Jesse Root,* for instance, practicing in Hartford before the Revolution, trained future law school teachers rather than established a law school himself, the explanation is to be sought in his subsequent successful career in the army, in the Continental Congress and on the bench. Similarly, his somewhat younger contemporary, Charles Chaun- cey^ of New Haven, recorded as a "lecturer on jurisprudence" for forty years, represents a more advanced stage of educational development; aut he, too, was diverted by higher ambitions during the early years of his career, and when he retired from the bench in 1793, the famous Litchfield law school had already been started. The Litchfield school was the creation of Tapping Reeve, a Prince- ton graduate, who, in addition to his other qualifications for this work, had married into the influential Burr and Edwards families. Admitted to the bar in 1772, after studying under Jesse Root, he settled in a town which, although small, was convenient of axjcess, being an important postroad junction. Deprived of opportunities of practice by the war, and yet protected by his location from its actual depredations, he de- voted himself to teaching law, and at the close of the war found him- self at the head of a fully developed law school.^ A successful theologi- cal school, conducted by Dr. Bellamy in the neighboring town of Beth- lehem, perhaps suggested to Reeve the possibility of developing a similar institution for law students. Several causes contributed to his success. The publication in 1789 of the first volume of American Law Reports by a fellow townsman, Ephraim Kirby, attracted the attention * of law- yers to Litchfield. A successful girls' boarding school, started in 1792, was a great help on the social side; Mrs. Reeve informed young Augus- 1 Admitted to the bar in 1763; Judge of the Superior Court, 1789-96; Chief Justice, 1796-1807. 2 Admitted to the bar in 1768; State Attorney, 1776; Judge of the Superior Court, 1789-93. '11 784 is the date usually assigned as the foundation of the Litchfield law school. Its catalogue claims 1782. Doubtless it was never born — it simply grew. * This volume of selected Connecticut decisions was followed a year later by the first volume of Dallas' Pennsylvania decisions. For subsequent early Reports, see Warren, History of the American Bar, pp. 328 ff. 130 RISE OF LAW SCHOOLS tus Hand, when he entered the school, that "the young ladies all marry law students." Finally, the influence of Mrs. Reeve's father, the presi- dent of Princeton, and of her brother, Aaron Burr, future Vice-President of the United States, and himself a student under Reeve, was undoubt- edly exerted in his behalf. His school acquired a national reputation, numbering among its graduates young men from every state. In 1 795 an incident occurred significant of its growing fame. A young Yale graduate and tutor in the college, James Gould, who had begun his law studies under Chauncey when the latter retired from the bench, deserted him for Reeve. Three years later Reeve was himself elevated to the bench and took in Gould as partner. Up to this time the total number of graduates is said to have been 210, or an annual average, since' the war, of some ten or fifteen. Gould was a man with teaching experience and inaugurated a more regular system of records. Although during the next ten years the school did not show any great growth, it at least maintained itself, with an attendance sometimes as high as twenty-one, sometimes as low as nine students. In 1809, however, the attendance suddenly rose to thirty-three students, and in 1813, the year of its greatest prosperity, to fifty-five — a figure which for over twenty years stood as a record for American law schools.' The school continued in operation for twenty years longer, and with a good attendance as late as 1826. Thereafter, however, it rapidly declined. Its decay may be attributed in part to the rise of rival institutions commanding greater resources and headed by younger men; in part to the general sagging of educational standards throughout the country, incident to the demo- cratic movement, which made the path of any law school hard; and in part to the fact that Gould, like Reeve, allowed himself to be tempted from his sheltered retreat into the glare of public life, and thus not merely neglected his school work, but exposed himself to the disrepute that eventually attached. to Federalist judges. Politics, ambition and advancing years had undermined the school even before the advent of Judge Story to Harvard contributed the finishing touch. Before it closed its doors, however, in 1833, it had sent out over a thousand graduates.^ 1 A new record was first established by the University of Virginia law school in 1835, with 67 students, followed by Harvard in 183B with 78. 2 John C. Calhoun of South Carolina, Horace Mann of Massachusetts, George Y. Mason of Virginia and Levi Woodbury of New Hampshire were among the many distinguished graduates of this school. Graduates who transmitted its traditions into law schools started in other states were Samuel Howe (Northampton, Massachusetts), THE LITCHFIELD LAW SCHOOL 131 The distinguishing characteristics of the school were its systematic course of lectures, delivered daily, and the fact that these were never published. Later collie law school instructors, like Tucker, Kent and Stoiy,having worked up lecture courses, were quick to publish their sys- tematized results for the benefit of the profession at large. The inev- itable effect of such publication upon students is to diminish the inter- est and importance of the lectures and to bring textbooks into promi- nence. This was the more natural in the study of the law, for the reason that under the original apprenticeship system textbooks had always been the source to which students had been referred for the theory of the law. The preceptor's function had been to systematize the readings and to add practical training. Reeve and Gould, however, preserved their system of lectures as a jealously guarded asset of their school. As delivered by Reeve alone in 1794, the coxu-se consisted of 139 lectures, covering, under a different arrangement, the same ground as Black- stone, except that the latter s discussion of governmental agencies and of criminal law were omitted.^ Later, the Law of Sheriffs and Gaolers and Criminal Law were added, and the complete course comprised a daily lecture, lasting from an hour and a quarter to an hour and a half, during a period of fourteen months. This included two vacations of four weeks each; for out-of-state students who would not take Connecticut Practice, it is clear that not more than a single year's residence was contemplated.- Students were required to write up their notes carefully, to do collateral reading, and to stand a strict examination every Sat- urday upon the work of the week. After the retirement of Judge Reeve from active teaching in 1820, a young Yale graduate and alumnus of the school, Jabez W. Huntington, was engaged to conduct these exami- nations. Doubtless from the beginning, and certainly during the later years of the school, optional moot courts and debating societies were in operation. The school offered a good narrow course in which the com- Theron Metcalf (Dedham, Massachnsetis), Edward King (Cinannati Law School), WiHiam T. Goold (Augusta, Georgia), Amasa Parker (Albany Law School). The only basis for the assertion sometimes made of a direct connection between the Litchfield and the Yale law schools seems to be that a nmaway slave, •• Old Grimes," hero of some once famous doggerel lines, having acted as a general fac- totnm to Litchfield stndents, subsequently occupied a similar position at Yale. 1 For a fuller discussion of the cmriculnm, and its influence upon later schools, see Appendix, pages 453-454. ' In 1833 Gould wrote that by lecturing a full hour and a half every day except Sun- day, and giving a supernumerary lecture one evening a week on Criminal Law, he had once succeeded in covering the entire course in about a year. 132 RISE OF LAW SCHOOLS mon law was taught as a " system of connected rational principles" rather than as a "code of arbitrary, but authoritative, rules and dog- mas." Concerned with law as a "science," in the brief time at its dis- posal it did not undertake to do for a student everything of a practi- cal nature that needed to be done. Under the rules for admission to the bar prevailing in the several states, attendance at this school, if allowed to count at all,'' would count for only part of the prescribed period of study.^ 2. Imitators of the Litchfield School Reeve and Gould having shown the way, various contemporaries at- tempted to followtheir example. A complete list of young practitioners or of elderly judges, who dignify their student classes by terming them "schools," cannot, in the nature of things, be compiled for any period in our history. The occasional office student merges into the institu- tional school by insensible gradations. More than a dozen such compet- ing ventures are known to have been started during the life of the Litch- field school, in seven states, ranging from Massachusetts to North Carolina. In 1833, the year the Litchfield school expired, private schools were opened also in Georgia and Ohio; six schools, started a few years later, give us an ascertained total of over twenty such experiments prior to 1850. The actual number was probably much greater.^ The mor- tality among these private ventures was heavy. Of schools strictly con- 1 See pages 243 ff. " For general description of the Litchfield lawschool, see Baldwin, Simeon E. , "James Gould," in Lewis, William D., Great American Lawyers, 11, iS&; Litchfield Law School Catalogue Reprint of 1900 ; Kilborn, D wight C. , Bench and Bar of Litchfield County, 1909 ; Presentation of the Meeve Law School Building to the Litchfield Historical Soci- ety, 1911. A detailed description of the school in 1822, by Gould, may be found in 1 United States Law Journal (1823), 401-405. Manuscript collections of lectures, exhibiting the curriculum, have been traced as follows : A. Hartford State Library, notes taken by Roger Minor Sherman in 1794, 708 pages, 12mo. B. Yale Law Library, notes undated, bearing autograph of Aaron Burr Reeve, who entered the school in 1802, and died in 1809, 7 volumes, pages not numbered, 4to. C. Yale Law Library, notes taken by Josias H. CoggeshaU in 1809- 10, 6 volumes, vol. S missing, 1640 pages, foho. D. Library of S. E. Baldwin, notes taken by Roger S. Baldwin in 1813, 5 volumes, 1972 pages, folio. The contents of this are analyzed in Governor Baldwin's biography of Gould. In addition, the Harvard Law Library contains an imperfect set of notes taken by William S. Andrews in 1812-13, 3 volumes, 1521 pages, folio, of antiquarian interest only. Two out of five volumes of notes taken by Alfred Ludlow in 1822 are in the possession of Leroy S. Boyd, Esq., of Washington, D. C. 3 For list of these schools, see Appendix, pages 431-433. IMITATORS OF THE LITCHFIELD SCHOOL 133 temporary with Litchfield only one — the Staples-Hitchcock school at New Haven — survived it, and did so only because Yale College took it under her wing. Of the more recently established schools, there were in 1850 only three that had not either formed a similar connection with a coUege or perished outright. Of these three schools, one was run by a professor of Lafayette College, although not apparently recognized as a department; one, the Lexington (Virginia) Law School, became the law department of Washington and Lee University when this institu- tion was revived after the Civil War; the third, the school conducted at Richmond Hill, North Carolina, by Judge Richmond M. Pearson, lingered as the last example of the Litchfield type until 1878, when it died with its founder. In the absence of endowment, and before the dis- covery that an independent law school might attract students by con- ferring the university degree of LL.B., a school of this type was entirely dependent for its success upon the personal force of its proprietor. When he died, or aged, or secured something better to do, there remained no definite asset upon which a successor might build. The significance of this group of schools in our educational development is that they served temporarily to bridge the gap between the students who wished system- atized instruction in law and the colleges that were not yet prepared to give it. CHAPTER XIII THE NEW ENGLAND COLLEGES 1. Non-professional Law, prior to the War of 1812 BETWEEN the Revolutionary War and the War of 1812, the New England colleges — and, following their lead, Princeton and other rural colleges in the middle states — remained about in the condition of King's College and the College of Philadelphia before the Revolu- tion, so far as concerned their attitude toward professional education. For forty years they did little more than advance slowly along a path upon which institutions located in the large cities had entered a gen- eration previously. This is true both as to professional work in medi- cine, which several of them came slowly to sanction,^ and as to profes- sional work in law, which they continued rigorously to exclude. Such studies of a political character as were introduced were intended only for their own undergraduates. They were designed, as President Stiles put it in his project for a Yale professorship of law in 1777, "not in- deed towards educating Lawyers or Barristers, but for forming Civil- ians; "^ or, in the later words of President Smith of Princeton, written in 1812, to embrace "those principles of jurisprudence, politics and public law or the law of nature and nations with which every man in a free country ought to be acquainted."^ In the Federalist section of the country there was no thought of following the JefFersonian lead and building up, alongside the college, a substitute course of profes- sional education in the law leading to its own degree; nor yet of adopt- ing the Columbia compromise, and devising a course for the benefit of both college students and outsiders. The connection between the col- lege and professional training was to be maintained in the traditional English way, by persuading the prospective lawyer to take both. Since, under the strict discipline of the American college, a resident student could not, as in the English universities, be registered as a law student at the same time, the courts were induced to modify their bar admis- sion rules. College study was never positively required. It was accepted, however, in lieu of part of the prescribed period of apprentice study; 1 Medical professorships were established by Harvard in 1783 ; Dartmouth, 1798 ; Brown, 1809 ; Yale, 1810; University of Vermont, 1811. ^ Warren, History of the American Bar, p. 563. 3 Colby, J. F. , " The Collegiate Study of Law," 19 Rep. Am. Bar Asa. (1896) 525. NON-PROFESSIONAL LAW PRIOR TO 1812 135 and sometimes this period was fixed at a length which permitted an entire college course to be substituted without delaying the student's admission into practice.' These political studies, given by "professors academical" as con- trasted with "professors medical,"^ resembled what we should now term government and jurisprudence rather than law, and were still only partially differentiated from ethics and philosophy.' In 1789, for in- stance, Harvard received a bequest to establish the Alford Professor- ship of Natural Religion, Moral Philosophy and "Civil Polity." Under this latter head was to be included the application of the law of nature to nations and their relative rights and duties, the reciprocal rights and duties of magistrates and of the people, and the various forms of government which have existed or may exist in the world. The prin- cipal purpose of the chair was "to demonstrate the existence of a Deity or Final Cause;" its eventual absorption by a highly rationalistic de- partment of philosophy constitutes an interesting application of what 1 New York retained its old requirement (see above, page 83 ) of counting college work (phrased after 1797 as "classical studies pursued after the age of fourteen") year for year toward a prescribed period of seven years. Massachusetts, after a period of hesitation and varying local practice, in the course of which SuiFolk County required one year more study from graduates of other colleges than in the case of Harvard men, adopted in 1806 a similar rule (time devoted to "literary acquisitions" in addi- tion to a good school education). In weakened form this was later introduced into Maine. New Jersey, on the other hand,, in 1780 gave a total allowance of only one year to college graduates, and before the close of the eighteenth century this example was followed in Rhode Island, Connecticut and South Carolina. New Hampshire, in 1805, with its longer period of preparation, granted an allowance of two years. In 1810 Massachusetts adopted this plan, and in 1826 Vermont — in the latter case with a provision also for partial credit for applicants who had not completed their college course. In 1843 Vermont raised its lump allowance to two and a half years. As requirements of a prescribed period disappeared, this recognition of college work naturally went with them. In 1880, however, six of the twenty-one states in which a period was prescribed (Vermont, Rhode Island, Connecticut, New York, New Jersey and Oregon) granted such an allowance, and even to-day a year's credit is given in Rhode Island and New York. 2 Compare Timothy Dwight's description of the state of higher education in New England in 1812, in his Travels in New England and New York, 1821-22, IV, 294. 3 For a valuable succinct summary of the gradual disentanglement of "jurispru- dence" in European thought from theology, philosophy, ethics, legislation, inter- national law and politics, see Roscoe Pound in 30 Harvard Law Review (1917), 201- 203. Broadly speaking, American classification and terminology has followed in these respects the general current of European thought. With respect, however, to the further difierentiation of "jurisprudence " and "law," there is much confusion. In popular usage in this country, "jurisprudence " signifies legal study pursued with- out reference to the immediate needs of a practitioner. See below, page 300, note 1. 136 RISE OF LAW SCHOOLS lawyers term the cy pres doctrine to the intentions of a testator.'' What- ever was actually taught, however, these studies, when most highly de- veloped, were usually designated as "law;" and in the three cases in which separate chairs were created, the incumbents were practitioners. This was the budding time of the American university curi'iculum, and while these vague generalities interest us to-day mainly as the ori- gins out of which developed our modern academic departments of gov- ernment or political science, in the two oldest colleges they also became connected with education for the legal profession. The successive attempts to broaden the old philosophical, classical and mathematical curriculum of the New England college by increased attention to political studies were as follows : Yale: President Stiles' projected professorship in 1777 was to comprise lectures on the civil law; on the common and statute law; on the codes of the thirteen states, including as much of Connect- icut practice "as is founded in principle and not merely officinal, for this is best learned at the Bar and by living with a Lawyer ;" and comparative government, including international law. Failing to secure legislative endowment for this, he delivered occasional evening lectures on "Law and Jurisprudence" himself, and in 1789 introduced Montesquieu into the list of prescribed readings. In 1801 a practitioner and prominent Federalist politician, Elizur Goodrich, was appointed professor of law, but resigned his posi- tion in 1810. Harvard: In 1781 Isaac Royall, a loyalist refugee, died in England, leaving to Harvard a bequest to endow a professorship either of laws or of Physick and Anatomy. This, like the Alford bequest, was allowed to accumulate until the conclusion of peace in 1815. There was some agitation in 1785 and 1786 in favor of establishing a law professorship. Until 1816, however, the only subjects of instruction related in any way to politics were moral and political philosophy and history and antiquities. Princeton: Montesquieu was introduced into the curriculum a few years earlier than at Yale, and between 1795 and 1812 Presi- dent Smith lectured upon the subjects mentioned in the text, as a part of his regular course of moral and political philosophy. Brown: David Howell, a practitioner, was professor of^juris- prudence from 1 790 till his death in 1824. But although requested by the Corporation to prepare and deliver a course of lectures in 1799, and again in 1815, there is no record that he ever did so. Dartmouth: In 1796 "natural and political law" was taught to seniors, distinct from "natural and moral philosophy," which iQuincy, Josiah, History of Harvard University, 1840, II, SOS. THE HARVARD LAW SCHOOL PRIOR TO STORY 137 was a junior subject. In 1808 the trustees voted to establish an "academic professorship of law," but the position was not filled until 1822, when the title was changed to professor of American Constitutional Law. Middlebury : Daniel Chipman was appointed professor of law in 1806, and his brother, Nathaniel Chipman, after his retire- ment from the chief justiceship of Vermont, in 1816. Although the latter continued to occupy the position until his death in 1843, it is probable that, like Chancellor Kent, his lectures were subordi- nated to his interest in finishing his Dissertations. This work, of which the first sketch was published in 1793, and the completed version forty years later, occupied for a time much the same position among discussions of American government that Kent's Commentaries enjoyed among strictly legal treatises. 2. The Harvard Lam School prior to the Advent oj" Judge Story Harvard, which had taken the lead in encouraging medical education in New England, had for many years been singularly inhospitable to political studies. In 1816, however, the Coi-poration, which had recently passed out of the control of the clergy into that of lawyers, appropri- ated the income, now amounting to a little over $400, from the old Royall bequest, described in the preceding section, for the support of a Royall Professorship of Law. The Chief Justice of the state, Isaac Parker, was appointed to the position, and was required to deliver, pri- marily for the benefit of the senior class, a course of not less than fif- teen lectures covering the constitution and government of the United States and Massachusetts, the history of Massachusetts jurisprudence, the common law as modified by usage, judicial decisions and statutes, "and, generally, those topics connected with law as a science which wiU best lead the minds of the students to such inquiries and researches as will qualify them to become useful and distinguished supporters of our free systems of government, as well as able and honorable advocates of the rights of the citizens." The professor was also authorized to admit outsiders on such terms as he might name, provided that regular stu- dents were not crowded out. In its general confusion of aim — its appeal both to prospective law- yers and to citizens, both to college students and to outsiders — this innovation reminds us of Columbia's early experiment with Kent; and the means devised for accomplishing the aims were even more obvi- ously inadequate. No one saw this more clearly than the Chief Justice 138 RISE OF LAW SCHOOLS himself, who, in his inaugural address as professor, outlined a singu- larly definite scheme for ingrafting upon this professorship a graduate school of jurisprudence. Four elements in his original idea should be emphasized.^ It was to be a professional school, devoted to the training of lawyers, in the spirit of the still flourishing Litchfield school to which Parker refers with approval; it was not to cater to civilians and lawyers at the same time, in the compromise spirit of Blackstone and Kent. It was to cover aaiy part of the professional training of the law- yer, leaving practice to be acquired in the office ; although, in language resembling Jefferson's, the inadequacy of office training is set forth, Par- ker is quite clear that "the practical knowledge of business may always be better leamt in the office of a distinguished counsellor." It was to be a local school, tending "greatly to improve the character of the Bar of our State;" the advantage to the Union as a whole of a "national law school " was not yet perceived by Harvard. Finally, it was to be a, gradu- ate school — "a school for the instruction of resident graduates in juris- prudence" were Parker's own words; the precedent of theology rather than of medicine was to be followed; ^ the college was not to build up a law school competing with itself, but to superimpose one upon a college basis. The following year, on Parker's initiative, the law school was launched under the direction of Asahel Stearns, a Federalist politician, who as a result of the general wreck of his party after the war had just lost his seat in Congress. Although formally appointed "University Profes- sor of Law," he was to be supported out of the fees of students.' The University provided the school only with rooms, with such books as it could afibrd to buy,* and with such cooperation as the Royall Professor could find time for. Only one feature of Parker's original plan was adopted in full. The school was to be a professional school intended 1 Warren, who well emphasizes the importance of Parker's address, gives extended quotations from it in his History of the Harvard Law School, 1908, 1, 299-302. 2 Theological instruction, long on a graduate basis in Harvard, culminated in a fully developed graduate divinity school in 1819. 5 These were tentatively fixed at $100 per annum, the standard rate for Massachu- setts law office privileges at this time {Annual Reports of the President and Treasurer of Harvard College, 1871-72, p. 62). The Suffolk County bar, in 1810, had agreed to charge their students $500 for the full three-year term required of college graduates, other periods in proportion. Yale started with $75 per annum. In 1828 Litchfield and the Dedham and Amherst schools charged $100. Stearns derived his principal support from the position, which he continued to hold, of County Attorney. * $500 granted by the Corporation provided the nucleus for the present magnificent Harvard law library. THE HARVARD LAW SCHOOL PRIOR TO STORY 139 primarily for the future practitioner. Harvard had at last taken this decisive step. A curriculum was devised consisting of readings in Black- stone and other common-law texts, supplemented by lectures contain- ing references to American decisions, by a moot court, and by debating clubs. It was only in the dissertations that the student must prepare "upon some title or branch of the law or the history of some depart- ment of legal or political science," and in the emphasis laid upon the fact that the public lectures of the college might be attended free of ex- pense, that we can detect any effort to encourage a broad scholarly edu- cation as contrasted with a thorough technical training. The second feature of Parker's design — that the school should provide only a part of the professional training — was also accepted for the time being. A degree was to be given to those who had remained at least eighteen months in the school, "and passed the residue of their novi- tiate in a manner approved." This, however, was clearly only a working arrangement pending the time when the university hoped to occupy the entire preparatory period. The original statute establishing the school provided that the degree should also be conferred upon students who had remained in the school during their entire prescribed period, and in 1823 the university announced that "the course of study is drawn up with reference to a period of three years." It was only because stu- dents would not spend their entire period of preparation here that the university tried to beguile them, by the degree, into spending at least eighteen months. No sequence between resident and office work was in- sisted upon. The eighteen months' residence might come at the begin- ning, in the middle, or at the end of the period of three years (or for non-college graduates five years) prescribed by the court. Or it might come after the prescribed period had been completed and the student already admitted to the bar. If a student did not wish a degree, he would still be welcomed. This same announcement significantly added to its statement of a three-year course, "But students are admitted at any period of their novitiate for a terra not less than one College quarter."^ Finally, the remaining two points in Parker's programme — that the school should be definitely keyed to the needs of Massachu- setts students, and be open only to college graduates — were discarded at once. Admission was thrown open to applicants from any state, the only condition being that they should be " persons qualified by the rules 1 Statement of the Course of Instruction, Terms of Admission, Expenses, S[c., at Har- vard University, 1823, p. 15. 140 RISE OF LAW SCHOOLS of the courts in any of the United States to become Students at Law." This meant that anybody would be admitted. The reasons for these departures from the Chief Justice's plan are manifest. Harvard inconsiderately embarked upon legal education with- out counting the cost. This was its period of over-expansion, leading to financial embarrassments and complete reorganization in a few years — the path travelled so often by our American universities. No support could be provided for the law school except that derived from students' fees; therefore as many students as possible must be secured and— for as long a time as they would pay their bills — must be retained. It was a question merely of dollars and cents. Through these manoeuvres, and helped by a puff from Judge Story,^ the school, starting with five stu- dents as against Litchfield's forty- three, had in its third year as many as nineteen students, against Litchfield's eighteen. If Harvard more re- cently has taken the lead in replacing legal education upon a graduate basis, it is only fair to recall that it was Harvard that gave the signal for encouraging a merely nominal connection between the college and the bar. She lent the prestige of her name to the doctrine that calling a practitioner a university professor is equivalent to making his pro- prietary law class a university school; and that an academic law degree may properly be conferred upon students entirely destitute of academic training. 3. The Yale Lam School Seven years after the opening of the Harvard law school the mantle of Yale also was wrapped around a course of nari'ow professional training. Although this action was undoubtedly suggested by the Harvard in- novation, the immediate origins of the two law schools were quite dis- similar, and resulted temporarily in a somewhat different organization. A private law school had for some time existed in New Haven, as an offshoot of the law firm of Staples and Hitchcock.^ Staples, removing to New York in 1824, turned over his interest in the firm to his former law preceptor, a prominent Federalist politician, Senator David Dag- gett.' The latter was at once appointed to the now vacant academical 1 In his review of Hoffman's " Course of Legal Stu&y," Miscellaneous Writings, p. 243. * See above, page 133, and Appendix, page 431. 5 The political affiliations of the early law professors in Harvard and Yale explain, if they do not justify, the insistence later expressed by Jefferson (see above, page 119) that the University of Virginia professors of law and government should be men who could be trusted to inculcate orthodox Republican doctrines in their students. THE YALE LAW SCHOOL 141 professorship of law, and the names of his thirteen pupils were included in the catalogue list of Yale students. Two years later the catalogue for- mally announced "The Law School" as such. With Daggett now trans- ferred to the Connecticut Supreme Court, and on the road to the chief justiceship, the similarity between his position at Yale and that of Isaac Parker at Harvard was pronounced. In both cases a distinguished judge gave to the university such portions of his time as he could afford, lec- turing both to seniors in the college and to professional students in the school.^ In both cases the general supervision and principal conduct of the law school devolved upon a younger practitioner. There remained, however, one essential difference. Harvard's surrender of its academic ideals consisted in attaching to itself a presumably worthy practitioner, and authorizing him to build up a school as best he might ; Yale's sur- render consisted in attaching to itself a ready-made institution. This initial difference in origin naturally led to certain differences in organ- ization and curriculum. Hitchcock was not at first recognized as a pro- fessor. He was a mere instructor, and not until 1830 did his name even appear on the formal catalogue list. Moreover, there was never any sug- gestion that the Yale school should offer onlysuch portion of legal train- ing as a university may appropriately conduct. It was a full practi- tioners' course requiring two years for its completion, and including from the beginning practice in drafting written instruments and doing "the most important duties of an attorney's clerk." ^ Thus, in spite of its nominal connection with the college, the Yale law school continued to be of the already established practitioner type. It resembled, among contemporary New England schools, a private school started in 1823 at Northampton, Massachusetts, by a Litchfield grad- uate. Judge Samuel Howe,' more than it did the Harvard experiment, which at least professed to do scholarly work. An avowedly alien element was admitted into the academic group, though not on equal terms. No degree was granted by the university for work done in the law school. None was needed in order to ensure a fair attendance, according to the 1 The similarity between the Royall Professorship at Harvard and the older Yale pro- fessorship was accentuated in 1833 when, through the activity of friends of Chancellor Kent, an endowment was secured for Daggett's chair, and the title of ' ' Kent Professor of Law " was attached to the position. In both universities the attempt to combine in- struction of college seniors with that of professional students was soon abandoned. The professorships, though originating in the college, became completely absorbed by the virtually independent law schools. 2 Yale Catalogue, 1826. * See Appendix, page 431. 142 RISE OF LAW SCHOOLS modest standards of the day. In 1827 and in 1828 Yale had twenty law students. This was already slightly in excess of the Litchfield figures, and only slightly below those of Transylvania and of the new University of Virginia school. Meanwhile the more pretentious Harvard project, partly because of growing competition, partly because of general de- moralization in the university, had failed to attract students. An at- tendance of a dozen or less was all that Stearns was able to show his un- sympathetic superiors after 1819. An academic law degree was not of enough practical importance to the future practitioner to repay the expense and inconvenience of attending a school located in a country village.^ 4. Reorganization of the Harvard Law School under Story The single event that turned the current of legal education in Harvard, New England and the nation at large was the generosity of Nathan Dane. Author of an Abridgment of American Z-at£' designed on the gen- eral plan of Viner's English Abridgment, he conceived the idea of doing for Harvard what the Vinerian Professorship, made illustrious by Black- stone, had done for Oxford. He offered to the incoming president, Josiah Quincy, $10,000 (increased to $15,000 after the success of the school was assured) to establish a professorship bearing his name. One of the conditions of the gift was that the first incumbent should be the dis- tinguished Judge Story. This was made the occasion for a complete reorganization of the school. The circumstance that Story had recently become a member of the Harvard Corporation made it a simple matter unceremoniously to oust Parker and Stearns. Story took Parker's place as the dignitary who gave to the school such time as he could afford; and, taking a leaf from Yale, the Corporation entrusted the onerous routine work to a practical law school man, John Hooker Ashmun, who had already learned his business in Judge Howe's school at Northamp- ton.^ A small group of students whom he brought with him, together with a single survivor from the Stearns regime, provided the nucleus ' No comprehensive history of the Yale law school has been written. See, in addition to the university catalogues, Theodore D. Woolsey's Historical Discourse pronounced be/ore the Alumni of the Lam Department, 1874; Francis Wayland's "Law Depart- ment," in W. L. Kingsley's Yale College, a Sketch of its History, 1879, pp. 90-99; Leon- ard M. Daggett's "The Yale Law School, 1 OreenBag (1889), 239 ; "Yale in its Re- lation to Law," Yale Law Journal, 1901 ; and Henry Wade Rogers' " Historical State- ment," in Yale Shingle, 1911. Staples and Hitchcock's original account-books are preserved in the Yale library. ^ See preceding page. REORGANIZATION OF THE HARVARD SCHOOL 143 for a total attendance of twenty-four during this first year (1829-30). Helped not merely by the reputation of Judge Story but also by the wise financial policy of the university, inaugurated at this time and ever since then consistently pursued,^ the attendance mounted quickly, permanently passing that of Yale in 1835, and of Transylvania and of the University of Virginia in 1838. The following year it exceeded the Harvard medical school figures for the first time.^ In 1841, its attend- ance of 115 was greater than that of the medical and divinity schools combined. In 1844, just before the death of Judge Story, it reached the figure, enormous for those days, of 163. Judged merely by the standard of numbers, the school was certainly successful.' Whether this early Harvard school, turning out large numbers of young men into the profession and serving, because of its success, as a model to colleges in other states, exercised an equally beneficial influ- ence upon legal education is a question more difficult to answer. Tak- ing the brighter side of the picture first, it is important to note Dane's original and primary purpose. This was the development not so much of lawyers as of law. With the work of Blackstone and Kent in his mind, he expressly stipulated that Story should be allowed time to pub- lish as well as to teach.* And he made another proviso, suggested both by the character of his personal labors and by his opposition, as an old school Federalist, to the doctrine of states rights then being agi- tated by Calhoun. Story was to confine himself to law "equally in force in all branches of our Federal Republic," supplemented, if deemed advisable, by "state law useful in more states than one, law clearly distinguished from that state law which is in force, and of use, in a sin- gle state only."° This is the origin of the Harvard tradition of schol- arly publication as one of the main objects of its school, and of the 1 See pages 149-150, below. ' Law school 86, medical school 85. * For figures showing the effect of competition among schools that appealed to more than a single constituency, prior to 1840, see Appendix, page 450. The difficulties in the way of securing reliable attendance figures are there discussed. The 1844-45 fig- ures quoted in the text are taken from the college first-term catalogue showing the greatest number of law students. Other editions of the same catalogue show 154 and 156 students. * Referring to Story's projected lectures, he says, in his formal offer to the Corpora- tion: "Clearly, their great benefit will be in publishing them . . . time shall be al- lowed him to complete ... a course of lectures . . . probably making four or more octavo volumes." Warren, History of the Harvard Law School, I, 420. S7JW.,419. 144 RISE OF LAW SCHOOLS "national law" as opposed to the "law of the jurisdiction" as the main object of its study. Seldom, perhaps, have the intentions of a benefactor been carried out with greater fidelity, and with more conspicuous success, in the devel- opment of a great institution of learning. Story's famous series of trea- tises on selected branches of the law, published between 1832 and 1845,^ constituted the first, but by no means the last, direct contribution of the Harvard law school to legal scholarship in the United States. And the value to the community of a "national law school," as an influence counteracting the disintegrating tendencies of our forty-eight distinct law-making machines, is more and more clearly realized by Harvard to-day as one of its special merits.^ Few will gainsay that in these two respects the "Dane Law School," as for a time it was currently known, has proved a worthy monument to its founder. It is not so clear that the school authorities, in the face of the un- deniably difficult situation created by the general lowering of require- ments for admission to the bar,' did everything that they might have done in the way of training actual practitioners. There was in the first place the question of admission requirements. A college education may properly be required by a university of its own law students, as a portion of a completely rounded education for the higher ranks of the bar, even if it may not properly be demanded by a democratic state as a quali- fication for the entire profession. Such was the English tradition, and such would seem to be the logical position for a college that is sure of its own worth. This was not the conception of university education held 1 Commentaries on the Law of Bailments, 1832 ; Commentaries on the Constitution of the United States, 1833; Commentaries on the Conflict of Laws, 1834; Commentaries on Equity Jurisprudence, 183S-36 ; Equity Pleadings, 1838 ; Law of Agency, 1839 ; Law of Partnership, 1841 ; Law of Bills of Exchange, 1843 ; Law of Promissory Notes, 1845. 2 The earliest o£Scial announcement of the school's policy toward local law appears in the catalogue of 1841, in the following statement : "No public instruction is given in the local or peculiar municipal jurisprudence of any particular state; but the stu- dents are assisted by the Professors, as occasion may require, in their private study of the law and practice peculiar to their own state." In 1848 this was changed to read : "The design of this Institution is to offer a complete course of legal education for gentlemen intended for the Bar in any of the United States, except in matters of mere local law and practice." The suggestion, often made, that the real reason for Harvard's consistent belit- tling of local law is that it has to adapt its instruction to students from many jurisdic- tions, hardly goes to the merits of the question. The essential point is whether the community gains through the existence of a school the character of whose chentMe encourages the maintenance of this policy. ' See above, pages 85-90. REORGANIZATION OF THE HARVARD SCHOOL 145 by JeflFerson, who was constitutionally opposed to requirements of any sort. But Harvard, although just beginning through George Ticknor to be influenced by Jefierson's, liberalizing views, was far from accept- ing his radical reconstruction of the whole scheme of higher education. Even in the most extreme phase of Eliot's free electives, Harvard has tenaciously clung to her college as the essential kernel of her entire university system. In spite of this fact she went even farther than Jef- ferson in discouraging law school students from acquiring a liberal edu- cation. In the University of Virginia, at least, the "schools" were so cor- related that it was easy for the law student to take liberal studies at the same time. But at Harvard, although law students were admitted to the "public lectures" of the college, it was only in Ticknor's mod- ern language courses that actual instruction might be secured, and then only by paying an additional fee. Except for this possibility, the law school was then, as now, maintained as a virtually separate institution. Its students were freed even from the college requirement of residence in Cambridge. Liberal studies must be pursued, if at aU, before the law course was begun. And yet the school did not demand any prelimi- nary education in its students. So far from requiring them to be college graduates, it did not even require them to have enough education to be admitted to college. More explicitly even than Stearns, Story an- nounced: "No previous examination is necessary for admission."^ 1 The successive steps by which the Harvard law school passed from the principle of admitting only Massachusetts law students, graduates of a college, to the frank admission of anybody, to any part of the course, elementary or advanced, at any time, are worth tracing in detail: 1816. Parker's inaugural address as RoyaU Professor : "A school for the instruction of resident graduates in jurisprudence may be usefully ingrafted on this professor- ship . . . [this] will tend greatly to improve the character of the Bar of our State." 1817. Statute estabUshing law school: "Some Counsellor, learned in the law, shall . . . open and keep a school for the instruction of Graduates of this, or any other University, and of such others as according to the rules of admission as attornies, may be admitted after five years' study in the office of some counsellor." 1817. Announcement of new school in Boston Daily Aduertiser: "Candidates for admission must be graduates of some college, or qualified by the rules of the courts to become students at law, and of good moral character." 1823. Statement of Course of Instruction: "Graduates of any public college, and others qualified by the rules of the Courts in the States to which they belong to be- come students of Law, and of good moral character, may be admitted to the Law School . . . students are admitted at any period of their novitiate for a term not less than one College quarter." 182S. Catalogue: "Persons qualified by the rules of the courts in any of the United States to become students of law, may be received into the Law School, for a period not less than one term." 1829. Catalogue: "Constant residence in Cambridge will not be deemed indispen- 146 RISE OF LAW SCHOOLS That under these circumstances a considerable proportion of Har- vard law school students should have continued to be college-bred men' is a tribute to the tenacity of the college tradition among appli- cants for the bar. Certainly Judge Story, in his double capacity of mem- ber of the Corporation and head of the law school, was not over-exert- ing himself to reduce attendance in his department of the university. In the second place, in its curriculum the school projected more than it actually carried out. Generalities in Story's inaugural address as to Philosophy, Rhetoric, History and Oratory may be ignored. His failure, while professing to believe in the value of such studies for lawyers, to find any place for them in the curriculum of his school is of interest chiefly as destroying a possible defense for his failure to insist upon college study. What he did do in his first curriculum, published in 1830, was to supplement the common-law and equity subjects, already taught by Stearns, by textbooks in Civil Law, International Law, Criminal Law, and Constitutional Law, including in the latter Ameri- can state constitutions as well as the law of the federal constitution. In 1832, however, all these topics except the last (federal constitutional law) were dropped from the regular two-year course, now outlined as an alternative to the three-year course originally contemplated. Al- though until 1850 the additional subjects continued to be more or less vaguely offered as exti'a studies, for students who would consent to stay an additional year,^ the intensive work of the school was henceforth confined to its original narrow field, supplemented only by study of sable for the law students ; it will be sufficient if they give their attendance at the regular hours prescribed for lectures and examinations and study. "No previous examination is necessary for admission to the school." 1835. Catalogue: "The students are divided into classes, according to their profi- ciency ; but students are generally at liberty to join either class, in as many studies as they may choose, according to their own view of their accomplishments. "No previous examination is necessary for admission." 1840. Catalogiie : ' ' No examination nor particular course of previous study is neces- sary for admission. "Students may enter the school in any stage of their professional studies." 1842. Catalogue : " Students may enter the school in any stage of their professional studies or mercantile pursuits." 1848. Catalogue: "Students may enter, if they so desire, in the middle or other part, of a term." ^ The proportion during the earlier years of the school usually ran from two-thirds to three-quarters. In 1844, however, only 56 per cent of the banner attendance of that year were college graduates, and in 1869 and 1870 only 47 per cent. ^ " For gentlemen who remain in the Institution three years, other studies are pre- scribed." Catalogue, 1835. REORGANIZATION OF THE HARVARD SCHOOL 147 the federal constitution. Not merely state government but also statu- tory law was eliminated.' A valid defense for this action exists. It is the boast of the Harvard law school that it has endeavored to cover part of the broad field of legal education thoroughly, instead of dis- sipating its energies, like poor David Hoffman, over a hopelessly ex- tensive area. During this period American law was developing, through judicial decisions, very rapidly. Doubtless it seemed a wise policy to start by doing part of the work well, in the hope of being able eventually to take up the excluded topics. Unfortunately this hope has never been realized, even to the present day. The Harvard curriculum, while keep- ing pace with the growth of American practitioners' law, and there- fore vastly more crowded with common-law studies than the practition- ers' schools which it replaced, has remained none the less crystallized within the original narrow circle of their aims. It has never so far com- pleted the first portion of its task as to be able to attack the omitted portions. Whether by deliberate choice, or through necessity, or through apathy and neglect, thoroughness rather than breadth has re- mained Harvard's dominating ideal.^ As already intimated, there is much to be said in defense of this policy, both on general grounds and as the only policy possible under existing conditions. Two points, however, are worth noting in this con- 1 Hence, doubtless, the omission of Criminal Law, which in many states was early- placed upon a statutory basis. This topic was not restored to the curriculum until 1848, after Story's death. See further as to the curriculum, Chapter XXIX, and Appendix, pages 453-456, 458. 2 Charles Warren's History of the Harvard Law School, and Early Legal Conditions in America, 3 vols., 1908, although discursive, is an invaluable guide to the history not only of this but of other early schools. Any one who attempts to study the in- choate beginnings of legal education in this country owes a debt of gratitude to this writer for the mass of information and references that he has assembled. Without this pioneer work, the present study could hardly have been written. Unfortunately, Warren's volumes, like his later abridgment published under the title of A History of the American Bar, contain so many errors of detail, that it is unwise to accept any of his statements without verification from the original sources, notably the university catalogues, statutes, etc. The most important document bearing upon the early his- tory of the school, and not quoted by Warren in full, is Story's inaugural address, iovrndinhisMiscellaneoiis Writings, 1835, pp. 440 fF. See also The Harvard Law School, 1817-1917, published by the Harvard Law School Association, 1917 ; reprinted with additions under the title of Centennial History of the Harvard Law School, 1817-1917, 1918; and, for the later period, Fessenden, F. G.,"The Rebirth of the Harvard Law School," 33 Harvard Law Bemew(1920), 493-517; and Eliot, C. W., "Langdell and the Law School," ibid., 518-525. The Harvard Club of New York City possesses an almost complete collection of catalogues since 1819. 148 RISE OF LAW SCHOOLS nection. The particular portion of "Ethicks and Politicks,"^ of "moral, political and juridical science,"^ on which the Harvard law school has concentrated its energies from the start, was just that portion which the practitioners most wanted. A wise adjustment of educational supply to public and professional demand is of course always in order. But if we recall other features of Harvard's educational policy at this time, it is impossible to avoid the suspicion that here, also. Story was pursuing the line of least resistance. The university was following, not leading, the profession. Furthermore, as regards one highly important feature of the narrowed curriculum — its recognition of the needs only of the practitioner and judge and its apparent ignoring of the service that a university law school might perform in training also legislators — Story's inaugural address reveals what his theory was. He was thor- oughly awake to the evils of slipshod legislation. But he was also a strong partisan of the common law during a period when it had not completely established itself as the basis of our jurisprudence. He stretched historical accuracy in his sweeping declaration that our an- cestors brought this law with them, as a fully developed body of legal doctrines it would appear, which they deliberately put into operation. He persuaded himself, accordingly, that all that was necessary in order to secure good statutes was to have them drafted by masters of the com- mon law — such as the Harvard law school intended to train. He under- estimated how much efficient legislation involves beyond mere know- ledge of the common law that it is designed to supplement or replace. As for "government," in the sense of training future citizens in the principles of "the most complicated frame of republican government which was ever offered to the wprld," he thought that this topic ought to be studied in the elementary schools' along with ethics, natural law and theology. These latter studies, he believed, already the future lawyer usually pursued there "with sufficient fulness and accuracy."* Whatever judgment may be passed upon Story's and Harvard's slighting of everything except the general principles of the common law, and American decisions developing this and the Federal Consti- tution, one thing at least is certain. Under the lead of this most suc- iPage 113. 2 Page 118. ' See " Lectures on the Science of Government, delivered before the American Insti- tute of Instruction," 1834., in his Miscellaneous Writings, pp. 147 fF. * So stated in his "Inaugural address," Miscellaneous Writings, p. 466. REORGANIZATION OF THE HARVARD SCHOOL 149 cessful of American law schools the orthodox province of law school teaching was now defined. Politics and law were no longer to be joined as in Jefferson's two Virginia institutions. Politics, as a subject of uni- versity study, was eventually to be developed by the college in its de- partments of government or political science; the particular function of the law school, from now on, was to cope with the increasing flood of judicial decisions. Finally, the law degree, for which the completion, in the school or out, of the Massachusetts bar admission period — at this time three years for college graduates, five years for others ^ — was originally re- quired, was cheapened in 1834, and again in 1839. The details of this interesting development will be discussed elsewhere.^ Suffice it here to note that the figures ofattendance quoted represent the students pres- ent at the beginning of the academic year. There was a large floating population in the school. Thtis, in 1838-39, although the school opened with seventy-eight students, seventy-three additional students entered during the year. Sixty -five, however, left during the year, and the aver- age attendance, as determined by the term bills paid, was less than the number at the beginning. The final reduction in the requirements for the degree to eighteen -months residence — or a year for those already admitted to the bar — was clearly calculated to entice additional students into coming, and into staying at the school slightly longer than they otherwise would, after experience had demonstrated that the traffic would not bear a three-year requirement. Three years later Yale, whose attendance had begun to decline, announced for the first time a law degree in connection with her narrow practitioners' course, on terms only slightly more rigorous.^ The great influence of Harvard upon other schools, for bad as well as for good, was again demonstrated. From some points of view this record is not inspiring. Educational standards were subordinated to the ambition of building up attendance. More students mean more money and more fame. Fame means still more students and hence more money. It should be borne in mind, however, that Harvard was not only making solid contributions to legal scholar- ship during these years. In pursuance of its wise policy of devoting all law school receipts to the benefit of the school, the university was also 1 See above, page 83. 2 Page 167. s One year for applicants already admitted to the bar; eighteen months for college graduates ; the full two-year course for others. 150 RISE OF LAW SCHOOLS preparing the future of legal education in other ways. Without the stimulated attendance of these early years, the Harvard law library could not have grown in twenty years from under two thousand to ten thousand volumes. Without the accumulated surplus that rolled up, future building operations could not have been conducted. A fair state- ment of the case would be that the ideal of conducting the best possible school for contemporary lawyers was sacrificed, perhaps j ustifiably, to the development of American law and to the ultimate strengthening of legal education. CHAPTER XIV SPREAD OF A STANDARDIZED TYPE OF LAW SCHOOL THE leading colleges and universities of the day having finally agreed upon a general policy in regard to legal education, there followed a long period of formal imitation. Virginia and New England — Thomas Jefferson and Harvard — representing though they did opposing influences in American life, had combined to establish the principle that instruction in technical or vocational law should be pro- vided for students who had taken none of the work offered by the tra- ditional Anglo-American college. This decision, following the similar step that had already been taken in connection with medicine, gave us the American university in its original and still prevailing form — the form that it universally bore prior to the introduction of graduate study. Professional schools conducted by and for practitioners were to be loosely coordinated with the original college rather than worked into an integrated educational scheme. Under Harvard influence no premium was placed upon college work as a desirable element in a fully rounded education for the bar. Prospective lawyers might, as always, go through the college before they began their law studies, or they might not. So long as they could be persuaded to enter the university law school on any terms, the university authorities were glad to take them in. Even the state did more to encourage academic training than this. Several states, as we have seen,^ permitted college graduates to complete their strictly professional training in a shorter period than was normally required. But the colleges' own trustees were strictly neu- tral in this as in aU other respects.^ If it was desirable that two grades of practitioners should be trained — the liberally educated leaders of the profession and the mere technical craftsmen — and that the uni- versity should. train both, all such distinctions were ignored in the school itself, which placed students of both types on an identical basis in the classroom. The interests both of the college and of the profes- sion were subordinated to the widespread desire to secure professional students in medicine and in law in order thereby to expand old-fash- ioned colleges into up-to-date universities. 1 Page 135, note 1 ; and compare pages 83, 112 and 313. 2 For occasional early exceptions, see the following chapter, page 166 ; and compare page 175. 152 RISE OF LAW SCHOOLS 1 . Additional Schools started prior to the Civil War The movement proceeded slowly for a time. South Carolina College, controlled largely by the judges of the state, declined in 1823 to com- ply with a suggestion of the legislature that it start a law school, until funds should be provided that would permit the school to be placed upon a graduate basis, not dependent upon tuition fees. The result was that not until the college had been converted into a state university, after the Civil War, was a school of the prevailing type established. This was soon closed because of negro control, and was not finally re- opened until 1884. Efforts to start a school at the College of New Jer- sey (Princeton) in 1825 and 1835 came to nothing, nor did the school that was actually opened in 1846 graduate more than six students dur- ing its existence of six years. The project of a school, outlined by John C. Spencer for Hamilton College, New York, in 1835,"^ in consequence of a bequest received for this purpose, was not realized until twenty years later, when Theodore W. Dwight, already Professor of Constitutional Law (government), developed a professional law school from which, after three years (1858), he was called to Columbia. Attorney-General Ben- jamin F. Butler's New York University school, which after some delay was opened in 1838, attracted only fifteen or twenty students, and lasted only a single year. Although Butler's name long continued to adom the pages of the University catalogue, as Kent's did that of Columbia, the year 1858 marks the real beginning of legal education at both these uni- versities. Judge John Reed's school at Carlisle, Pennsylvania, connected with Dickinson College, and the Cincinnati law school were the only other schools started or adopted by a college prior to 1 840. By 1840, accordingly, instruction in professional law had actually been given in twelve college or university schools, of which only seven were still in existence, with an aggregate attendance of about 350 students;^ five middle-states experiments had been for the time being abandoned.' 1 See 13 American Jurist (April, 1835), 486. Spencer found it necessary to justify the entrance of the college into the field of legal education as follows : "It is believed that law is a science, and may be studied and acquired in the same manner as all other sciences ; and consequently that the general system of instruction pursued in our colleges may be successfully applied in this branch of knowledge." It is interesting to compare this language with a quotation from Langdell given by Professor Redlich in his report to the Carnegie Foundation {Bulletin Number Eight, p. IS). 2 William and Mary, Transylvania, University of Virginia, in Virginia and Kentucky; Harvard and Yale in New England; Dickinson in Pennsylvania; Cincinnati in Ohio. 3 University of Pennsylvania, Columbia, University of Maryland,Columbian College of Washington, D. C. (later George Washington University), New York University. OTHER SCHOOLS PRIOR TO THE CIVIL WAR 153 During the next twenty years the founding of university law depart- ments proceeded more vigorously, at the average rate of nearly one a year. The decade 1840—50 witnessed the first invasion of legal educa- tion by the western type of state university,"- by the Jesuit order ^ and by a municipal university.^ The development at this time was mainly in the South. The principal events of the decade 1850-60 were the revi- val of the University of Pennsylvania law department, the establish- ment of four law schools in the state of New York* and the opening of the present law departments of Northwestern University (Chicago) and the University of Michigan. By 1860 a total of thirty college or university law schools had been started since the Revolution, of which eighteen had never closed their doors, and three had been revived after early failure, making a total of twenty-one then in existence.' Although the development of these competing institutions, coupled with Judge Story's death in 1845, seriously reduced the attendance at Harvard for a time,^ this school preserved its reputation as the leading law school of the country. Thus in 1854 President Lindsley of the Uni- 1 Indiana University, 184.2, followed at once by four southern universities which con- formed to this general type (Georgia, North Carolina, Alabama, Louisiana). The older institutions bearing the names of the states of Virginia, Pennsylvania and Maryland, have developed along different lines. ^ St. Louis University, 1842. This was also the first law school conducted under uni- versity auspices west of the Mississippi. After a brief existence of five years the school was abandoned, and was not revived until sixty years later. The earliest permanent Roman Catholic law school was started by the Congregation of the Holy Cross in 1869 at its University of Notre Dame, Indiana. 3 The University of Louisville, in its origin, like the University of Maryland, essen- tially an expanded medical school, is governed by a board of trustees who from the beginning have been appointed by the municipality, on the prevailing model of state universities. The mere use of an urban name — Cincinnati, New York, Albany, Nash- ville, Chicago, Richmond, Boston, etc. — is no guide to the character of an institu- tion. * Albany, 1851; Hamilton, 18S5; Columbia and New York University revived, 1858. 5 Or including the school started by McKendree College in 1860, twenty-two schools at the outbreak of the Civil War. These twenty-one schools are listed in the Appen- dix, page 451. For a complete list of schools, arranged chronologically, and a table showing gains and losses by decades, see Appendix, pages 433-430, 444. * In the five years following Story's death the attendance dropped from 163 to 94. Attendance from Massachusetts fell off 37 per cent, from the rest of New England 41 per cent, from southern or border states 47 per cent, from the rest of the country 46 per cent. At the outbreak of the Civil War the attendance had risen again to 166. The per cent increase during the decade, for the same four geographical groups, was 46 per cent, 69 per cent, 81 percent, 140 per cent. The total attendance was now dis- tributed as follows: Massachusetts, 32 per cent; other New England, 16 per cent; southern and border states, 23 per cent ; other United States and foreign, 29 per cent. 154 RISE OF LAW SCHOOLS versity of Nashville assured his alumni that their own recehtly estab- lished school was furnished with "a suite of rooms, a corps of pro- fessors, and a plan of organization which bid fair, at no distant day, to rank it as the Harvard of the South." ^ Lindsley's hopes were disap- pointed, however. The southern Harvard was closed after a single year. In its place Cumberland University in the same state maintained the position it had early secured as the leading school, in point of numbers, in the Southwest; the year before the Civil War it forged to the front even of Harvard, its catalogue showing 180 students.^ 2. General Similarity of these Early Schools On the whole these schools were very similar to one another. Poten- tially important differences existed, as will be shown later, in the length of their degree course, in their organization and in their relation to office study, but for the moment these differences possessed little prac- tical significance. A few other distinctions may be noted, but these also were relatively unimportant, even at the start; and progressively, as the lowering of bar admission standards and improvement in means of com- munication made the battle for existence more severe, schools compet- ing with one another and with the older law office approximated to a common type. Thus at the beginning Virginia and Harvard sacrificed their colleges in different ways, and in pursuit of different ideals. Jef- ferson, as we have seen, deliberately planned to abolish the college in favor of his more comprehensive university scheme, under which aca- demic and professional chairs or "Schools" were to be coordinated on equal terms in a free democracy of learning.* Harvard, on the other hand, preserved its college organization intact, but set up beside it rival schools of medicine and law.* Jefferson's scheme was the more idealistic and symmetrical. Its defect was that it ignored the fundamental distinc- tion between cultural and professional education, and therefore could not be made to work, even badly, as did the Harvard system. The Vir- ginia academic " Schools" continued in fraternal union with one another. The professional "Schools," on the other hand, expanded, through the creation of additional chairs, into professional departments, demanding ^ Address delivered before the Alumni Society of the University of Nashville by John Berrien Lindsley, October 3, 1S54. ^ For relative attendance figures in the schools, see Appendix, page 4.51. 3 Page 116. * Page 145. SIMILARITY OF EARLY LAW SCHOOLS 155 the full time of their students, and standing apart from the rest of the university, which thus again became a virtually independent college in, fact, if not in name. This development occurred in medicine as early as 1837; in law in 1851. After this date there was no real distinction between the Virginia and the Harvard type of university. Similarly, as regards the curriculum of the law department, the Vir- ginia ideal was much broader at the start. "Politics" for legislators as well as law proper for practitioners was in the beginning taught in this state and in the Kentucky school. When, in 1851, the rapid growth of American law threatened to crowd out politics, and statutes, and inter- national law, the University of Virginia appointed a second professor, in order that justice might be done to all these topics. As late as 1854 the University of Mississippi started its department under a professor of " Law and Governmental Science." For the moment this was decidedly in contrast with the Harvard ideal. We have seen how narrow was the practitioners' course originally introduced by Stearns, and how Judge Story's efforts to broaden it culminated merely in the addition of his own important studies in the federal constitution. The field that a professional law school can profitably cultivate was defined, in short, quite differently in New England and in the South. Harvard, though it had a larger teaching force, cultivated a much smaller area. Here again, however, events proved that, with the resources at their com- mand. Harvard was right and Virginia was wrong. The volume of judi- cial decisions grew faster than did the capacity of the Virginia school to expand its teaching force. The charge of superficiality could be avoided only by dropping some of the subjects. Thus all schools have been forced to devote their main energies to the common law; and while the question of what they do with the rest of their time will eventually become of great interest,* the total thus diverted does not bulk large in the final result. "Politics," even in the South, has been relegated al- most entirely to the colleges, where it has been developed in depart- ments usually bearing the name of "Political Science" or "Govern- ment."^ In the University of Virginia itself, government courses are now given by the academic School (department) of Economics, though Parliamentary Law, as a direqt inheritance from the original William 1 See below, pages 273 ff. " South Carolina College, which had no law school, possessed between 1835 and 1856 the most eminent political historian and philosopher in the country, in the person of Francis Lieber. His precise title was "Professor of History and Political Economy," to which was added, in 1849, "Political Philosophy." 156 RISE OF LAW SCHOOLS and Mary curriculum,'- was offered until recently as a law school elective. Another minor consequence of Jefferson's broad ideals is the tendency, among universities influenced by Virginia, to place such borderland subjects as international law in the law school rather than in the col- lege.^ But on the whole, with whatever aspirations the schools started, in the end there was no substantial distinction between northern and southern courses of study. The principal divergencies that can be discerned in the courses of study maintained by early law schools sprang from different causes, which operated intermittently in all parts of the country alike. We have seen ' that while Harvard determined the general type of univer- sity law school that prevailed in the North and ultimately also in the South, there was in the beginning a distinction between the attitude of Harvard and that of Yale toward legal education. This line of divi- sion, at first purely subordinate, ended, as the southern schools became assimilated to the northern type, by becoming the principal one. It should be neither over-emphasized nor overlooked. The two New Eng- land schools were alike in seeking to train only the practicing lawyer, and not the politician or legislator as well. Where they differed was in their estimate of the kind of training that the practitioner required. Harvard was slow to assume entire responsibility for this task, as a sub- stitute for the system of office training. Its original conception of its mission was to leave to the office what the school cannot do so well. Yale, on the other hand, from the start frankly attempted neither more nor less than an ordinary practitioners' course, annexing to itself what was essentially a systematized law office. Traces of this early conflict of ideals may at all periods of our history be found between school and school, or in the same school at different periods: now a somewhat greater emphasis upon a scholarly treatment of the broader aspects of the common law ; now a greater attention to the minutiae of practice, to the drafting of written instruments, to the purely local law of the jurisdiction. Early law schools, however, cannot be satisfactorily classi- fied from this point of view. As the pressure to secure students, and 1 See above, page 117. " It Is significant of the extent to which the divorce between law and government work has been carried in most universities that at Harvard, as the result of a recent attempt on the part of the law school to broaden its curriculum, independent courses in In- ternational Law, Roman Law, and the history of English law were in 1916-17 offered both by the law school and by the college Department of Government. 3 Page 141. SIMILARITY OF EARLY LAW SCHOOLS 157 therefore to give students, what they demand, has made itself felt under a competitive regime, few schools have pursued a consistent policy in this respect. The variations spring partly from the calibre or tempera- ment of the instructors — the relative importance they attach to thor- ough grounding in fundamental principles, as against an education that will be of immediate use — and partly from the nature of the clientele to which the school most naturally appeals — whether to a national or to a local student body. The main significance of the shifting policy and general uncertainty as to precisely what subjects shall be taught is the evidence which this affords that the community demands more than a single type of legal education. In the attempt to be all things to all men, a standardized curriculum has been sought. Failure after all these years to agree as to the content of such a curriculum is a pretty fair indication that the task is impossible. Everywhere, accordingly, university students and their instructors tended to become divided into independent and more or less compet- ing groups: on the one side, college students who were taught only by the college faculty; on the other side, undergraduate students who were registered only under the professional faculties of law or medicine. The lines of division were sometimes blurred, it is true, because it was not unusual for students to carry academic and law work at the same time. This blurring occurred somewhat differently in the two sections of the country. In the South it was the result of the Jeffersonian tra- dition, which encouraged college students to elect professional work. Students registering both in the academic and in the law "Schools" appear in the University of Virginia catalogues until a late date. The notion survived even where the noz-thern type of university organiza- tion was definitely introduced. Thus the University of North Carolina, when it took over a private law school in 1845, organized a separate law class for the benefit of "such irregular members of the College as, with the permission of the Faculty, may be desirous of joining it."^ In the North, on the other hand, the rigorously prescribed college cur- riculum, the more intensive character of the law work, and — in the cities — the physical location of the law school near the courts instead of at the university, operated to exclude college students from the prac- titioners' classes. Here the pressure to break down artificial barriers was exerted in the opposite direction. The tendency was for law students occasionally to take a little academic work, rather than for college stu- 1 For the peculiar arrangements as to a degree, see below, page 166. 158 RISE OF LAW SCHOOLS dents to take law courses. At Harvard, although outside of Ticknor's modern language courses no effective instruction in academic subjects was open to law students, the privilege of attending the "public lec- tures" of the college faculty was for many years highly prized. "^ Furthermore, in an effort to counteract the excessive narrowness of the northern curriculum, a partial blending of the college and law school faculties sometimes occurred. During the first period of the Harvard law school, for instance, the Royall Professor continued in theory to be primarily engaged in lecturing to college students. His lectures were merely "open," on the same principle as other public lec- tures, to Stearns' law students, who by this means secured their con- tact with non-professional law. It was only with Judge Story's arrival that this chair became technically part of the law school, that the work of its incumbent became avowedly professional law, and that instruc- tion in government for the time being disappeared from the college. A generation later, a somewhat similar development occurred at Co- lumbia. As part of an abortive plan to develop graduate studies in 1857, Francis Lieber^ was brought from South Carolina to occupy a chair of History and Political Science in the college. Just as the estab- lishment of the Royall professorship at Harvard led at once to the opening of a practitioners' law school, so at Columbia the introduction of Lieber's work in government was followed the next year by Theo- dore W. Dwight's narrow professional course.^ Lieber continued to give 1 In 1847 an attempt to exact fees was abandoned owing to the strong protests made by the law faculty and students. The lectures most frequented by law students at this time were those in anatomy and history. Already, however, conflicts of hours lessened the value of the theoretical privilege. Although the privilege still survives, the increasing pressure of work upon the Harvard law students makes it to-day of little practical importance. As to the early situation see Warren, History of the Har- vard Law School, II, 343. 2 Page 155. 3 The reader who is interested in the precise genetics of the modern law school wiU recall that Parker's Royall professorship itself was virtually identical with Kent's unsuccessful attempt at Columbia, which again followed the slightly more ambitious plan conceived by the College of Philadelphia. Both Kent and Parker offered only a single year's work in non-professional law, not leading to a degree, but the work differed from that of the ordinary "academical" professor of law, in being open to other than college students. Lieber, on the other hand, and our modern college de- partments or schools of government, political science, etc. , stand in direct line of suc- cession from the professor academical, untouched by what we should to-day term "university extension" and "vocational" ideals. William H. Betts, a trustee of Columbia, made a brief attempt, after the death of Chancellor Kent, to deUver law lectures personally, and later led the movement which resulted in bringipg Lieber to the college. SIMILARITY OF EARLY LAW SCHOOLS 159 undergraduate instruction in the college, and since Dwight's students could not conveniently leave their downtown location to attend his classes, it was arranged in 1860 that he should go down to give a special course in public law to them. Five years later, the college connection was broken, and Lieber, like the Royall Professor at Harvard, became attached exclusively to the law school. Instead of working into the tech- nical curriculum, however, Lieber continued until his death in 1872 to give lectures in his own non-professional field — optional, and rarely attended by more than four students.^ The ultimate results of the tra- dition thus started at Columbia have proved to be of some importance. It is obvious, however, that so far as their immediate influence upon legal education was concerned, none of these devices bridged in any sat- isfactory way the widening gap between the academic college and the professional school. Northern and southern schools became surprisingly ahke in this as in all other respects, considering how different were their origins.^ 1 The college professor of Moral and Intellectual Philosophy and Literature also traveled down to the law school to lecture on legal ethics, until he became discour- aged by his failure to attract students, and stopped trying. 2 For authorities consulted in the preparation of this and succeeding chapters, see Appendix, pages 460-462. CHAPTER XV ESTABLISHMENT OF THE LAW DEGREE THE assumption of responsibility for instruction in professional law by the colleges or universities naturally suggested the estab- lishment of a scholastic degree appropriate to their law graduates. The problem of devising such a degree, and of defining the conditions under which it should be awarded, presented peculiar difficulties which have never been completely surmounted. Even to-day, law degrees possess far less popular or professional significance, and therefore far less prac- tical importance, than do corresponding symbols of educational attain- ments in other fields. They have, however, a real even though a subor- dinate value, and cannot by any means be ignored. In order to clarify the problem, it will be necessary to say a few words in regard to Amer- ican scholastic degrees in general. These may be conveniently classified under three heads: the "academic" or non-professional degree of bach- elor of arts, science or philosophy ; higher non-professional degrees; and degrees conferred by colleges or universities in special professional fields such as medicine, law or engineering. 1. The Bachelor of Arts {A.B. or B.A.) and its Derivatives The degree of bachelor of arts dates from the old University of Paris, founded in the twelfth century, and the ultimate source of virtually all higher education both in Europe and America. This degree was implanted at once at Oxford and Cambridge, and subsequently in the American colonial college. Owing to its decadence on the European Continent, it had acquired by the time of the Revolution a character- istically English flavor, for which reason, among others, it was abolished by Jefferson in Virginia. It was reinstated, however, by William and Mary as early as 1792, and by the University of Virginia in 1848, since when it has been universally conferred in this country as a first, and for the great majority of students as the last, non-professional uni- versity degree. In popular understanding the receipt of this degree is equivalent to "graduation from a college." At Paris in the thirteenth century three or four years were required for the degree, and in the United States in the twentieth century the requirement is the same. More precisely, the standard residential period is now four "academic" HIGHER NON-PROFESSIONAL DEGREES l6l years, but study during the summers or — so notably at Harvard — more intensive study during the academic year, sometimes enables a student to fulfill all requirements in three calendar years. The broadening of the old-fashioned classical curriculum has not usually been accompanied by any corresponding alteration in the degree. Some institutions, how- ver, have restricted the arts degree to such graduates as have taken a certain amount of classics prior to or during their coUege course. For the benefit of non-classical students these institutions originated the degrees of bachelor of science (S.B. or B.S.), bachelor of letters (B.L) or bachelor of philosophy (Ph. B.). A still later development by which professional work may be counted toward the non-professional bach- elor's degree wiU be described in a later chapter.^ 2. Higher Non-professional Degrees In its original design the baccalaureate was thought of as only a stage in the progress toward the master's degree in arts. When, with the growth of knowledge and the development of lower schools, separately organized but feeding into the universities, the burden upon the stu- dent's time threatened to become unreasonably severe, the situation was met in two different ways on the European Continent and in England. On the Continent, the bachelor's course either was gradually taken over by the lower schools or else disappeared entirely from the educational scheme, leaving only a single non-professional degree conferred by the university. Gradually also, as the craft-guild origins of the universities became obscured, the recipient of this degree ceased to be thought of as one who, after a period of apprenticeship, had been finally admitted as a master workman in his craft. The general tei-m "master," applicable to goldsmiths and to scholars alike, gave way to one that more spe- cifically connoted erudition : "doctor" (teacher). England, on the other hand, with characteristic conservatism, retained both the bachelor's and the master's degrees in her universities, but allowed the latter to wither away into an empty form. In order to secure the higher degree, it was sufficient at one time to pay additional fees after the lapse of a certain number of years. In this country we inherited, along with the vig- orous baccalaureate, this moribund master's degree (A.M. or M.A.). Efforts to revitalize it, notably in the University of Virginia after the death of Jefferson, were eventually complicated by our adoption of a 1 See pages 333-338. 162 RISE OF LAW SCHOOLS totally different educational scheme. When the time was ripe to start serious postgraduate work, young men ti-ained in Gei-man universities were placed in charge of "graduate schools,'' organized, like the already existing professional schools, independently of the college, and leading to the avowedly German degree of "doctor of philosophy" (Ph.D.). Since then the master's degree may be regarded either as an addendum to the bachelor's degree or as a preliminary to the doctorate, and is often conferred on terms that render it of little significance.^ 3. Professimial Degrees other than in Lam Among specialized professional degrees,^ the historic " doctor of medi- cine " is the only one that has thoroughly established itself in popular repute. An earlier preliminary degree of bachelor of medicine (B.M.) soon disappeared, leaving the title of doctor and the letters M.D. in complete possession of the medical field. Independent medical schools, as early as 1807, secured permission in their charters to grant this degree, antedating by many years a similar development in law. The degree has become the veritable trademark of the physician, and must be counted as one of the influences which has kept this profession in close and prevailingly helpful contact with its schools. It is the focal point of all efforts to improve medical standards, for the reason that, irre- spective of state rules affecting admission to practice, the average pa- tient does not wish to be treated by any but a regular M.D. If the pro- fession can establish minimum standards for this degree, either by in- stigating state regulation, or through its own unaided influence exerted through its national association with its powerful organ of publicity, it has done all that, from the point of view of education, needs to be done.^ No other profession is in this happy situation, and no other pro- 1 Yale now confers the degree of Master of Arts "ex officio and without public pre- sentation, upon any person who is elected a member of the Corporation or attains professorial rank in the University, and has not already received its Master's or Doc- tor's degree." In some institutions the special master's degrees of M.S. or M.L., corresponding to B.S. or B.L., are likewise conferred. ^ As distinguished from degrees possessing professional value for teachers, but prima- rily denoting admission into a general fellowship of scholars. The Ph. D. and the A.M. are professional degrees to-day only in the sense that all academic degrees were so originally. ' Whether the regular physicians ought to go farther than this, and put upon the stat- ute-books legislation granting its own members a monopoly of medical practice, is a question of governmental policy as to which there may be two views. Even those who believe, however, that a patient should be allowed to be treated by any one he PROFESSIONAL DEGREES IN GENERAL l63 fession accordingly has such remarkable educational achievements to its credit. In theology the multiplicity of sects, and the difficulty of secur- ing laborers in the vineyard on any terms, make it difficult to impose rig- orous educational tests. If individual theological schools or seminaries maintain serious degree courses of varying kinds, they do so without much popular support. The use in ordinary language of such titles as Reverend or Father indicates how much greater weight is attached in this vocation to spiritual than to intellectual attainments. As for re- cently specialized professions— engineering, teaching, etc. — which have come under the university wing, a bewildering variety of degrees have been devised, which may be compendiously dismissed as amounting to nothing at all. A certificate of graduation in a certain specified course from a certain university or independent technical school receives such credit with the profession or with state licensing boards as the reputa- tion of the institution seems to deserve. To go fai'ther and authorize the holders of these certificates to append cryptic combinations of letters to their names is one of the developments that has helped to make American university degrees an object of derision to foreigners.^ The relative success of the American university in establishing its non-professional degrees of A.B. and Ph. D., and its professional degree of M.D., on a basis that seems likely to endure, may be ascribed to the fact that in these branches of university activity European precedents applicable to local conditions could be found. Fortified by these prece- dents, these degrees have exercised over the popular mind that author- ity that comes from close adherence to long established forms ; nor can it fairly be said that conservatism in this respect has prevented a healthy development in more essential matters. The introduction of the German Ph.D. was indeed a radical innovation, in so far as it represented a departure from the English tradition. It was not, however, a departure from tradition as such. It was merely a shift to what, at that time, was may prefer, must recognize that it is an advantage to know what the regular M.D. stands for. 1 The U. S. Commissioner of Education reported, in 1914, 60 different kinds of de- grees, conferred in course, not counting those in divinity, law and medicine. Included in the list are such interesting combinations as B.A. in Ed., B.S. in Ed., B.Ed., B.Ped., B.E.E., B.O., B.Journ., B.Mus., B.Paint., B.S. in H.Ec, M.F., M.M.E. The following are some of the so-called degrees which appear in earlier reports : A.C.,A.L.B.,B.Did.,B.E.M.,B.F.A.,B.L.S.,D.P.H.,L.A.,L.I.,M.E.L.,M.S.A., M.Dip. In 1910 the Carnegie Foundation found 38 different degrees conferred in engineering alone {6 Annual Report, 1911, p. 86). See aXso \B Asaociaticyn of American Universities, Journal of Proceedings and Ad- dresses (1916), 70-72. 164 RISE OF LAW SCHOOLS believed to be a worthier model. Hence, although this degree is still a trifle exotic and has not like the A.B. and the M.D. become part of the vocabulary of all classes of citizens, it has been able, on the whole, to hold its own. In the newer professions, on the other hand, we had no precedents to lean upon, and have discovered that authoritative traditions can- not easily be improvised. A public, with a sense of humor, declines to take seriously our poly-literal innovations. It is too soon to determine whether public recognition can in time be secured for some of these — whether out of the existing competition of alphabetical monstrosities a few fit ones may perhaps survive; or whether the whole theory of aca- demic degrees is inapplicable to our now widely diversified system of vocational training. 4. Early Experiments with Law Degrees In the ancient profession of the law, the difficulty was of another sort. It lay not in the absence but in the inapplicability of English prece- dents. Two types of law degrees were familiar in English usage : scho- lastic or academic, and non-scholastic or professional. The scholastic degrees were those of Oxford (B.C.L. and D.C.L), and of Cambridge (LL.B. and LL.D.). These represented, however, the usual cultural work, with the addition of a strong tincture of Roman law. Despite Blackstone's efibrts at Oxford and the later establishment at Cam- bridge of the Downing Professorship of the Laws of England, these degrees had little to do with the common law of the practitioners. This was represented by the professional degrees of barrister and serjeant- at-law, conferred by a pseudo-university, the Inns of Court, and ad- mitting their recipients to practice.^ In other words, the precedents, although familiar, did not apply to the case of an American college undertaking instruction, purely in American law, which led up to but not into the office or position of attorney. Nowhere did the college have authority, like the English Inns, to grant admission to practice through its degree. Moreover, in the northern states still another com- plication existed. The insistence by the county bars and by the courts upon a prescribed period of preparation for the position of attorney, and the promotion of these attorneys, after a further period of practice, to the higher ranks of the profession, made the process of admission 1 The expression "degree of counsellor at law" appears in a New York Supreme Court rule of 1797. EARLY EXPERIMENTS WITH LAW DEGREES l65 even as attorney-at-law virtually equivalent to the confemng, by the courts, of a first professional degree. The system of non-scholastic de- grees threatened to be so elaborated, in short, in the hands of the prac- titioners and the state as to leave no opening for the universities. This explains why the American college, when it invaded the field of legal education, was forced for many years to pursue a timid policy. It was deprived of what, in medicine, was its chief weapon of defense — the right to grant or withhold a generally recognized, a respected and coveted, degree. Possessing neither legal nor moral control of education for the bar, it could build up a student body only by making its work appeal to the students themselves. It must establish a reputation for being able to give students a more effective prepai-ation for the bar ex- aminations than they could secure from a single practitioner or an inde- pendent law school during the same number of years. Any degrees that it might confer would be of subordinate importance at best. Whatever re- quirements it might institute for such degrees must not interfere with the primary object of meeting the existing demands of the profession. Under these circumstances, some colleges for a time offered their law work without making any provision for conferring a degree. This was the policy pursued by the University of Pennsylvania^ and by Colum- bia in their early unsuccessful experiments, by Yale prior to 1843, and by the University of Georgia prior to 1859. The University of Maryland under its charter possessed the right of conferring the degree of doctor of laws (LL.D.) for attendance at law lectures. There is no record, however, of any such degrees in course actually awarded during Hoff- man's ill-fated experiment. The University of Edinburgh tradition affected this institution through the medical school; at Edinburgh, and at all American universities in general, the LL.D. has been purely honorary.^ In a few cases the requirements instituted for the new law degree attempted to distinguish between students who took only the ordinary practitioners' course and those who possessed certain academic attain- ments as well. The early Virginia method of promoting academic study 1 In 1789 the trustees of the College of Philadelphia voted to consider, in connection with the proposed lectureship, the propriety of conferring degrees in law. Wilson's course was launched, however, without any such provision. 2 As distinguished from the Cambridge University LL.D., which is granted both for work in course and honoris causa. See Grant, Alexander, Story of the University of Edinburgh, I, 238, 290; H, 129. The precise degree conferred by Harvard upon George Washington, in 1776, was " Doctor of Laws, the Law of Nature and Nations, and the Civil Law." 166 RISE OF LAW SCHOOLS among law students was to make a distinction in the nature of the degree conferred. All students took the same amount of professional work, but those who lacked academic qualifications would receive no degree, or only an inferior one, while students possessing these quali- fications would receive a degree indicating this fact. This was the plan adopted by William and Mary in 1792,' and, although the language is confusing, was perhaps the intention of a peculiar an-angement devised by the University of Virginia in 1829.^ Later, when the principle of entirely distinct degrees for college graduates and for law school grad- uates had definitely triumphed — students to secure both degrees by completing both independent courses of instruction if they chose — occasional attempts were made to stimulate academic study among law students by allowing such work to count as an offset to the normal pro- fessional load. Thus, Yale in 1843, following the precedent set in the requirements for admission to the bar, confen-ed its law degree upon college graduates after eighteen months study, in place of the two years required of others. The University of North Carolina, in 1845, offered the degree under two alternative plans : the completion of a two- year course, composed entirely of professional work; or the completion of a two-and-a-half-year course, of which only a small part was profes- sional.^ The Yale requirement became a mere anachronism which was ^ "For the degree of Batchelor of Law, the Student must have the requisites for Batchelor of Arts ; he must moreover be well acquainted with civil History, both Ancient and Modern, and particularly with municipal Law and Police." Statutes of 1T92. This was substantially the English system. The use of the singular, "Batchelor of Law" (L.B. orB.L.), in place of the Cambridge LL.B. was doubtless intended to de- note the absence of the Civil Law from the curriculum. A similar Scotch degree was not Instituted until 1874. Grant, Alexander, Story of the University of Edinburgh, II, 130. By 1837 the academic qualifications had been reduced to ' ' one full course of study other than that of Law, taught in this college." Laws and Regulations, p. 26. 2 " In the Department of Law two degrees shall be established, an academic and a professional, the professor of the school and the faculty being the judges of the kind of proficiency suited to each. The academic graduate shall have the title of Graduate of the School of Law, and it shall be expressly stated in the diploma that the pro- ficiency required for this degree is not such as would entitle him to practice the pro- fession. The professional graduate shall have the title of Barrister of Law." Faculty resolution, 1829. Two students received the lower degree in 1829, none the higher. The requirement was never published in the annual catalogues, and in 1810, according to a sketch published by Professor Minor in 1859, the degree of "Bachelor of Law" was intro- duced. At present the usual LL.B. is conferred. 3 "A complete course will occupy two years forthe Independent Class and two years and a half for the College Class, at the end of which the degree of Bachelor of Law EARLY EXPERIMENTS WITH LAW DEGREES l67 abolished in 1882. The North Carolina device failed to produce the desired effect at the time, since few students stayed long enough in the school to secure the degree under either plan. It is of interest only in connection with much later developments.' Prevailingly, and especially under the influence of Harvard, the prob- lem was approached from a different angle. The original Harvard theory may be expressed as follows : The state had already defined the period of study required for admission to the bar, and with due appreciation of the value attaching to academic work. The period required for ad- mission to the lowest grade was five years in general, or three years in the case of college graduates.^ The proper policy for the school was to subordinate itself to the state policy in these respects, rather than to set up a rival system of its own. The period prescribed by the state was accordingly the foundation upon which Harvard built. If law students had satisfied this requirement in its entirety, and if they had spent in the university law school such portion of this period as the school was prepared to cover, then such students deserved a university law degree. The Cambridge, England, degree of LL.B. was selected as the appro- priate symbol with which to designate those who had thus pursued a portion of their technical studies under academic shades ; and eighteen months was considered for the moment to be a long enough portion.^ Now, the difficulty with this arrangement was that its foundation was crumbling. The rigorous apprenticeship system was already weak- ened in other states, and was to disappear in 1836 in Massachusetts itself. In 1834!, the attempt to impose Massachusetts standards upon the bar of the country at large was abandoned; henceforth, in addition to the eighteen months residence, students were required merely to have studied "the residue of the time necessary for their admission to the Bar of the State to which they belong or in which they intend to prac- will be conferred on such students as by their proficiency may be deemed to be en- titled to it. " The Independent Class will be called on for recitations three times a week. The recitations of the College Class will be only once a week, and will be so arranged as not to interfere with the ordinary studies of College." Catalogue, 1845-46. 1 See page 324. ^ See page 83. 5 "As an excitement to diligence and good conduct, a degree of Bachelor of Laws shall be instituted at the University, to be conferred on such students as shall have remained at least eighteen months at the University School, and passed the residue of their noviciate in the office of some counsellor of the Supreme Judicial Court of the Commonwealth, or who shall have remained three years in the School, or, if not a Graduate of any College, five years, provided the Professor having charge of the same shall continue to be a practitioner in the Supreme Judicial Court." Statute of 1817. 168 RISE OF LAW SCHOOLS tice." And in 1839, this indefinite "residue" disappeared altogether from the degree requirements, and only the eighteen months remained. What had been originally intended as merely the university's particu- lar portion of the period of preparation was now the only part of the period that was left, a pitiful relic of an originally ambitious structure. Indeed, the theoi-y of correlating law school with state requirements, instead of encouraging students to remain in the school as long as possible, operated now as a positive deterrent. It was thought necessary to provide that, students already admitted to the bar might secure the degree after only one year's residence.' Worse was to come, however. In 1847, avowedly for the purpose of enticing students away from the Yale school,^ Harvard offered to give full credit toward its degree for time spent in any institution having power to confer the LL.B., subject to the proviso that at least one year must be spent at Harvard. This is the origin of the "advanced stand- ing" privilege almost universal in our law schools to-day, the abuse of which has done much to demoralize legal education.' The suggestion sometimes made, that it is inherently advantageous for American law students to travel from one school to another, on the model of German university students, is not worth a moment's consideration. Eeich of oiar schools organizes in its own way its sequence of small courses and the relative weight attached thereto ; it is a sheer loss to the student to be obliged to fit two fragmentary curricula together, even when he is act- ing in good faith. Notoriously, moreover, the bulk of advanced standing students are the "lame ducks," who hope to slide through the more diffi- cult courses in the general confusion that results. Unless proper pre- cautions are taken, the professional college athlete is helped to ply his trade by this privilege. That some credit may properly be given by one school for work done in another, may be conceded. That even full credit should be given by one school, for time spent in another institution of equal or superior standing, may be allowed. It is a logical absurdity, however, to plead that it is good for the student to be rescued from an inferior school — and then to credit work done there at its face value, 1 This latter provision was copied by Yale in 1843 and by Princeton in 1846. After 1843 Harvard limited the privilege to those who had studied law for one year prior to admission to the bar. * See Warren, History of the Harvard Law School, II, 34»5, for correspondence leading up to the adoption of the new Harvard statute. 3 The many technical varieties of advanced standing rules now in force will be dis- cussed in a subsequent bulletin. The University of Virginia law department stands alone in not allowing anf credit for studies pursued elsewhere. FINAL FORM OF THE FIRST DEGREE IN LAW 169 as some schools still do. And if logical considerations are not to inter- fere with the attempt to stamp out inferior schools, one wonders at the code of professional ethics which makes it right to steal clients from one's rivals. 5. The First Degree in Law as Finally Developed By about 1840, the period of experimentation traced in the preceding section came to an end. The influence of the already famous Harvard law school upon other institutions was so great that, from now on, the general principles of the American university law degree were definitely established in the form that they were to retain during the remainder of the century. Subject to occasional unimportant exceptions in indi- vidual universities these principles have been shown to be as follows; 1. The degree of bachelor of laws (LL.B.),or occasionally in the South bachelor of law (L.B. or B.L.), instead of being, as in England, a vari- ant of the bachelor of arts denoting that the recipient is a university graduate who has specialized in law, is awarded quite independently of the degree of bachelor of arts. Students who have graduated both from the college and fi-om the law school are distinguished from grad- uates of either department alone by the fact that they have two uni- versity degrees to their credit. 2. The course of study pursued for the degree is almost unrelievedly technical or professional. It professes to do little more than to cover, more effectively, part or all of the ground traversed by office students in preparation for practice. 3. The requirements for the degree are determined, however, by the school itself, independently of the requirements made by any state for admission to its bar. 4. Part, but not all, of the course of study must be pursued in the institution that confers the degree. The number of years required for this first degree, and the institu- tion in this connection, after the Civil War, of higher degrees in law, will be discussed in the following chapter.^ 1 See, as to the power secured by independent law schools to confer degrees, after the CivU War, pages 189-192 ; and as to the later combined degree in Arts-Law awarded by the universities, pages 333-338. The replacement, by certain institutions, of the LL.B. by the novel J.D., as a first law degree for college graduates, is a still more modern development, the details of which can be most conveniently given in a forthcoming bulletin of the Foundation, devoted to a survey of contemporary legal education. CHAPTER XVI LENGTH OF THE DEGREE COURSE. FAILURE OF HIGHER DEGREES IN LAW THE classification of law schools as "one-year," "two-year," and " three-year " schools, on the basis of the number of academic years customarily required to secure the degree, early imposed itself as a convenient method of applying quantitative measurements to insti- tutional education. Though a natural inheritance of the traditional method of measuring apprenticeship preparation, it is a very crude and unsatisfactory manner of distinguishing between schools. Granting that the amount of time the student devotes to securing his education deserves consideration as one of several important factors that aiFect the value of a law school degree, the mere length of the technical course he pursues after having been admitted into the school is only one of three elements that enter into this computation. The other two are the amount of preliminary education that he is required to possess before he may be admitted, and the amount of time that he devotes to his studies during [the required residential period. Furthermore, even the length of this period, it will be shown, can be measured only in a very rough and ready way. Some respect must be paid, however, to conventional modes of thought. The following sections discuss, accordingly, the length of the technical degree course up to the date (1890) after which insistence upon this single feature becomes hope- lessly misleading. 1. Length of the Degree Course in Academic Years The standard of the early southern schools, William and Mary and Transylvania, was a single year, and is partly to be explained by Jef- ferson's antipathy to prescribed periods of time, whether in connection with admission to the bar or with institutional education. Litchfield seems ultimately to have required about a year and a half from students taking the entire course. '^ This may have influenced Harvard's early de- gree requirement^ of three years for college graduates or five years for others, of which, however, only a year and a half need be taken in the school. By 1830 there had been added the two-year schools of Yale 1 See page 131. 2 Page 167. LENGTH OF THE DEGREE COURSE 171 and the University of Maryland, and the one-year school of the Uni- versity of Virginia. By 1840 Hoffman's University of Maryland school had expired, and the inflated and impracticable Harvard scheme had been reduced to the solid kernel it contained. A year and a half here, and two years (except for college graduates) at Yale, were now the only exceptions, so far as known, to the one-year standard. During the next decade (1840—50), four more two-year schools had been started: North Carolina, Princeton, Louisiana, Cumberland Uni- versity in Tennessee. The South was clearly progressing. The Prince- ton experiment, however, was abandoned in 1 852, and Cumberland came down to Harvard's level the following year. The only two-year schools started during this decade (1850-60) were those of the University of Pennsylvania at the beginning, and of Columbia and the University of Michigan at the end.^ It was not until after the Civil War that the two-year movement became general. Whereas in 1860 only six schools out of twenty-one offered a course of this length, in 1890 fifty-two out of sixty-one offered a course at least this long; and of these no less than fifteen offered something more. The development of the preceding half century is shown in the following table: Number of Schools offering Degree Courses of the Length Stated^ 1840 1860 1860 1870 1880 1890 One year ^ 4 6 12 19 13 8 One and a half years * 1 1 2 2 1 1 Two years 1 B 6 17 29 37, Two years, with additional work leading to a higher degree ^ 4 8 Three years ^ i 7 Length of course not known ' 1 3 1 Total schools in existence 7 15 21 31 5i 61 1 The University of Nashville failed to secure support for a four-year course in law, described in its catalogue for 1854^55. " The courses maintained by Yale and the University of Georgia prior to the insti- tution of a degree are included. 3 In 1890: Little Rock University, Arkansas ; University of Georgia, Mercer, and Emory College, Georgia; Tulane University, Louisiana; West Virginia University; Cumberland University, Tennessee (one year of ten months after 1871); Central Normal College, Indiana (one year of 48 weeks). * In 1890: Allen University, South Carolina (colored). 5 One year leading to LL.M., except in Yale, where one year to M.L. and a year additional to D.C.L. « For names of these and the preceding group of schools, see below, pages 176, 177. 'Dickinson, 1840, 1850; Lafayette, 1850; Louisville, 1850. 1860. 172 RISE OF LAW SCHOOLS 2. Unreliabilily of this Method of Appraising the Degree The information given in the preceding section is significant princi- pally as evidence of a general tendency to increase the requirements for the degree. As a basis for estimating the relative amount of training secured by the students in the several schools, it is practically worth- less. To begin with, there were great variations in the length of the aca- demic year, the law school sometimes having a much shorter year than that prescribedfor the college. Among the one-year schools, on the other hand, were some with an unusually long year. The University of Michi- gan started by crowding all the work into a single "senior year" of six months; the school was a two-year school only in that before this genu- ine work could be accomplished, students must have spent a prelimi- nary "year'' either sitting at the back of the room watching the seniors recite, or in law office study or in actual practice. It was not until 1884 that the length of Michigan's law school year was raised to the nine months required in other departments of the university ; and only after 1886 did it abandon the device of carrying students twice over the same ground. After the Civil War there was also a tendency to advertise a nominal two-year course, which could, however, be covered " by com- petent students " in a single year. New York University prior to 1 864, and Yale for a few years beginning in 1869, were among the first schools to adopt this device, which subsequently became common in the South. At the University of Maryland students were known to do even the three years prescribed work in one. Notre Dame permitted mature students to cover its three-year course in two years. The practice was in part due to the weakness of these schools in the absence of a pre- scribed period of study prior to admission to the bar; in part it was a reflection of the old Jeffersonian antipathy to time requirements of any sort. It was encouraged by the action of the American Bar Association. This body adopted a resolution, fathered by its committee on legal education in 1881, which formally recommended a graded three-year law school course. The chairman of the committee, however, — himself a southern law school man, — explained, in answer to questions from the floor, that the resolution was not intended to prevent a student from covering the course in six months, if he could do so. It should be noted also that even before the Civil War there had been in the eastern states a tradition — doubtless derived ultimately from the English Inns of Court — that three years was after all the proper length for a law school course. This had been the figure adopted UNRELIABILITY OF DEGREE MEASUREMENTS 173 by Wilson in 1790 and by Hare in 1817 for their unsuccessful experi- ments at the University of Pennsylvania. In 1835 it had been proposed independently by John C. Spencer for Hamilton College and by Benja- min F. Butler for New York University. Hoffman's Course of Legal Study, published the following year, outlined three-year and four-year courses of reading — a two-year course only for "country practition- ers." This tradition introduced still further complications into the situa- tion. Harvard, in. spite of the fact that it required only eighteen months residence for the degree, announced as early as 1823 that the course of study was drawn up with reference tea term of three years. Story printed in the catalogues a long list of textbooks, intended to be covered dur- ing this period, and in 1831 the students were graded sis members of a Senior, Middle and Junior class. Both practices were continued until the accession of Langdell. In 1832, however, asterisks were placed be- fore the titles intended to be covered in a two-year course, and in 1835 there was instituted a regular two-year cycle of lectures. This then went through an independent development of its own, being lengthened in 1844 to two years and a half, and reduced again in 1848 to two years, where it remained until the new era began, one half being given in each alternate year.* Meanwhile the degree requirement of eighteen months remained unchanged; and the third-year ideal evaporated into a vague statement that " for gentlemen who remain in the institution three years, other studies are prescribed."^ Similarly, Princeton in 1846 com- bined a two-year requirement for the degree with the announcement of a three-year course of study; the old University of Chicago, prior to its partnership with Northwestern in 1873, combined a one-year degree requirement with a two-year course. The conflict between the amount of law that these institutions desired to teach and the amount that they dared to insist upon their students taking produced this double standard. Other anomalies also existed, particularly along the line of giving credit for law studies not pursued in the institution. Three illustra- tions taken from the more advanced schools will suffice. Until 1870, Harvard had permitted two exceptions to its nominal requirement of one year and a half of resident work. Only one year need be spent here by students who had spent at least six months in another school, or by 1 See below, pages 361-363. ^ Or, beginning 1849, " beyond two years, other studies are from time to time pre- scribed." 174 RISE OF LAW SCHOOLS students who had spent a year in any sort of legal study and had sub- sequently passed their bar examinations. The theory underlying both exceptions was that the complete time requirement must in any case be preserved, but that as regards the quality of the work some reliance might be placed upon other institutions, whether law schools or exam- ining bodies. In 1871, under the influence of the English examination movement, Harvard abruptly abandoned this theory. Ability to pass its own annual examinations, covering a curriculum designed to oc- cupy two successive years, was now the fundamental requirement for the degree. One year, as before, must be spent in residence here; but the first-year examinations were open to aU. It was of no interest to the Harvard authorities how much time had been spent in preparing for this examination, or where it had been spent. Complete reliance upon its own examination was substituted for the former reliance upon a time requirement and somebody else's examination. When, after 1878, three annual examinations were required for the degree, and the school thus became to all intents and purposes a three-year school, it stiU con- tinued true that three years of law study were not positively required. Two years must be spent in residence here. It was recommended that if only two years were thus spent, they should be the first two. In prac- tice they were more apt to be the last two. FuUy to appreciate the sig- nificance of the Harvard system, it should be noted that even during the residence years no account of attendance or recitations was taken. Ability to pass the examinations was in every year the ultimate test. The circumstance that during any one year technical residence was not required was therefore far less of an anomaly than a similar rule would have been in other institutions.* Turning now to the two other New England schools, we find a dif- ferent theory operating. Yale followed Harvard in offering the degree, in 1872, to students who, after passing an advanced standing exami- nation, should do a single year's resident work ; but in accordance with a belief that Harvard was making a mistake in relying upon an un- 1 Because of the stringency of the examinations, few students attempted them except on the basis of resident study. The Dean's Report shows that in 1889-90 there were only 7 such attempts for the first-year examinations, out of a total of 86. and none for those of the second and third year. The third-year examinees included, however, one man who had entered in April and one who had been absent during the first half of both this year and the year before. In 1894 it was provided that the missing year must have been spent in a law school, and in 1898 that only the first year might be thus forestalled. TWO WAYS OF LENGTHENING THE COURSE 175 checked examination system,^ those who took this examination must also give evidence of having studied law for a certain period; and office study was reckoned as half the value of study in another law school.^ Somewhat inconsistently with this theory, however, Yale continued to accord to all students who had passed their bar examinations the privi- lege of securing the degree in a single year; it did not even now add the proviso that Harvard had attached to its early rule, that such stu- dents must have studied law for a year prior to taking their bar exami- nations. Most illuminating also were the struggles of Boston Univer- sity to reconcile its ambition to maintain a three-year course with its need for students. In 1877, the student must have studied two years in this school and one year anywhere ; in 1878, one year in this school, one year either in this or in some other approved school, and one year anywhere; in 1880, he could also obtain the degree after a single year here if he had studied three years anywhere else, or if he had passed his bar examinations one year prior to admission; in 1883, the attempt to distinguish between study in an approved law school and office or pri- vate study was abandoned — two years study anywhere and one year here would 3deld the degree ; in 1 885, the degree would be awarded " in excep- tional cases" for a total of two years study; in 1887, the degree was defi- nitely promised to students who stayed two years in the school and se- cured "sufficiently high rank; " a note was added that "as a rule" the privilege would be restricted to those who were twenty- three years old and college graduates; this developed later into a definite rule grant- ing the degree in two years to college graduates and members of the bar who completed the course with high rank. 3. Higher Degrees versus a Lengthening of the Period for the First Degree It would be tedious to continue these illustrations of the futility of classifying schools according to the number of years nominally required for their degrees. It is of some interest, however, to note the two diver- 1 See Baldwin, S. E., "Graduate Courses at Law Schools," in 11 Journal of Social Sci- ence (1880), 123. 2 J.e., non-college graduates secured a year's credit on their two years' residential requirement, on the strength of one year's study in another law school, or two years study in an office. College graduates secured a half year's credit on their one and a half year's residential requirement, on the strength of a half year in another lawschool or a whole year in an office. In 1882 the rule permitting college graduates to secure the degree in a year and a half was abolished. 176 RISE OF LAW SCHOOLS gent lines along which, by 1890, the degree course of fifteen schools had come to be extended beyond two years. Every school would have been glad to induce students to protract their law studies. The practical problem, expressed in its most naked tei-ms, was this: How could the degree be manipulated so as to serve as a genuine inducement.'' One solution was to leave the LL.B. requirement at its previous maximum of two years, on the theory that the refusal to grant it after this interval would merely drive students into offices or into inferior schools; and to establish a higher degree as a symbol of higher attainments. This was the theory on which Columbia proceeded as far back as 1863, with- out success. The novel degree of LL.M. was offered for a year's addi- tionsd work. For two consecutive years this degree was actually con- ferred, but thereafter the postgi"aduate year attracted no students, al- though for some time it continued to be announced in the catalogue.^ Harvard adopted a similar device for a few years after 1873 and Boston University after 1874, both institutions utilizing for this purpose the ancient A.M. or M.A.^ In 1876 Yale, encouraged by an informal post- graduate course maintained by con^espondence the year before, inau- gurated a one-year course leading to the degree of M.L.and a two-year course leading to that of D.C.L. Columbian College (George Washing- ton) took up the one-year Master-of-Laws course the year following. Its local night school rivals, Georgetown and National Universities, quickly followed its lead. In 1890 a one-year M.L. or LL.M. was being offered also by Washington University (St. Louis), Northwestern, Mich- igan and Minnesota, yielding a total, including Yale's triple degree course, of eight.' The attendance at all these graduate law courses was, however, very small. The chief interest of this early movement for post- graduate work in law lies in the fact that it failed, and that the lesson of its failure seems to have been lost upon the present generation.* 1 Following Lieber's death in 1872, the announcement that "a third year or post- graduate course has also now been organized for those students who may desire to pursue their studies beyond the regular course," was changed into an expectation that such a course would "soon be organized." The course had no reality after 186S. No names of students taking the course were printed in the catalogue. " Restricted, however, in the case of Harvard, to candidates already possessing the A.B. as well as the LL.B. 3 Beginning in 1887 Yale also offered the B.C.L. for a course paralleling its LL.B. course, but emphasizing Roman law, etc. * My authority for the extent of the movement in 1890 is the detailed description of law schools contained in the Report of the U. S. Commissioner of Education for 1890-91, I, 414-433. The dates of origin have been taken from the university catalogues. In addition to the schools named in the text, others were temporarily affected by TWO WAYS OF LENGTHENING THE COURSE 177 Although there was much in the existing condition of bar require- ments to justify timidity in the schools, it is noteworthy that the lead in taking courageous action occurred in a state which did not protect its law schools in any way, namely, in Massachusetts. Boston Univer- sity deserves the credit of being the first school to attempt a three- year LL.B. course; Harvard, that of being the first to attempt it suc- cessfully. The Boston school, at its first opening in 1872, announced a three-year course, and actually enforced it to the extent of refusing a degree the following June to one advanced standing student who could not show three years study. Following Harvard's announcement, however, of a postgraduate year superimposed upon a two-year course,^ Boston pursued the same policy until Harvard announced, in 1876, a three-year LL.B. course, to go into full effect two years later. The delay enabled Boston University again to be the first professedly to in- augurate such a course, in 1877,' on a level which, as we have seen,^ it was unable to maintain. Harvard, with its superior resources and pres- tige, allowed no concessions from its three-year rule. The extraordi- nary influence that is exerted by a great university is strikingly illus- trated by the fact that when in 1878 Judge Seranno C. Hastings, whose son had just been graduated from Harvard College, endowed the law school in San R:ancisco which bears his name, he organized it on a three-year basis. Direct Massachusetts influence doubtless also accounts for the appearance of the three-year LL.B. course in an evanescent negro school started the same year.' Thereafter the move- ment proceeded slowly, the University of Maryland and Notre Dame, in 1883, being the next institutions, to fall partially into line, with three-year programmes that could be covered in less than three fuU the movement. Thus, in 1874 the one-year University of Iowa school attempted an additional postgraduate year, which it did not formally abohsh until 1882. Two years later a change in the bar admission rules enabled it to advance to a straight two- year LL.B. In 1879 Boston University added to its ostensible three-year LL. B. course a two- year course leading to the LL. M. and a four-year course leading to the D. C. L. (seven years in all). This ambitious scheme was nominally in force until after 1890. In 1883 the University of Pennsylvania inaugurated, in addition to its two-year LL. B. course, a two-year LL.M. course, open both to graduates of any recognized law school and to members of the bar; and this technically survived (until 1897) the lengthening of the LL.B. course. In neither of these institutions, however, was this graduate work of sufficient importance to be reported to the Commissioner of Education in 1891 . 1 See preceding page, a Page 175. 3 Shaw (now Rust) College, Mississippi. 178 RISE OF LAW SCHOOLS years.^ It was not until 1888, when the success of the Harvard experi- ment was assured^ and Columbia and the University of Pennsylvania were thereby encouraged to lengthen their courses, that there was no question but that three years was once more to be, as it had been in Philadelphia a century before, the orthodox length for a fully devel- oped law school.' We shall see later what the law schools proposed to do for their stu- dents to justify the expenditure of time required in order to secure a degree. 4. Handicaps under which the Lam Schools operated This development of a regular degree course of a definite and gradu- ally increasing length may be summed up as follows: The colleges were still under the influence of what may be tenned the quantitative theory of education — the notion that the entire field of any science can be mastered within a definite period of years. They had not yet reached the conception of the boundlessness of human knowledge that underlies both the elective system and graduate research study. Had the colleges been in control of legal education, they would doubtless have devised a curriculum, occupying some period assumed to be ade- quate for the purpose in view — in all probability three years. They would have fortified this curriculum by requirements of admission at the stai't, and by the award of a degree at the end. American legal 1 See above, page 172. '■' A large entering class in 1886, coupled with an increase in the number of old stu- dents returning, was accepted by Harvard as evidence of the success of its experi- ment. Prior to this date, there had been considerable fluctuations in the size of the entering classes, and only a small proportion stayed long enough to complete the course. The average period of attendance was only a little over a year and a half. ' The precise dating of an increase in the number of years required for the degree presents certain technical difficulties. The dates given in the text are the dates when the requirement went into effect for new students. Students already in the school continued to graduate under the old rule. The third-year work was not actually or- ganized until the first three-year class was ready for it. Boston University had from the beginning continued its original three-year cur- riculum without substantial change, but with a note stating that, for the present, at- tendance during the third year would be entirely optional. In 1877 three years study for the LL.B. was announced, which might, however, include a year spent elsewhere "under competent instruction." A final examination was required, but not, as at Harvard, successive annual examinations. The Harvard curriculum was also continued without substantial change in con- tent. In 1877 the three-year system went into effect, except for advanced standing students. In 1878 it was in effect for all students, and the advanced work was divided into second-year and third-year topics. HANDICAPS OF THE LAW SCHOOLS 179 education would have been cut and dried, more effective, less plastic, less of a tax upon the powers of one who attempts to describe it. The colleges were not in control of legal education, however. On the con- trary, they were only humble aspirants, seeking to gain a foothold. Prospective practitioners did not see the necessity of devoting much time to law study, in states where no period of preparation was pre- scribed ; they were far from being certain that theoretical school studies were necessarily preferable to practical office work, even in states where they were obliged to take a definite amount of one or the other. The colleges might, by judicious use of their power to confer academic de- grees, enhance the apparent value of their instruction to some extent; these degrees, however, possessed at first only sentimental value,^ and, because of their novelty, not much even of this ; bait of this sort was therefore not remarkably effective. Moreover, the colleges did not com- mand sufficient financial resources to warrant them in offering instruc- tion that few or no students would take. TTiey were obliged, accord- ingly, to organize their law schools in such manner as to appeal to the greatest possible number. In the first place, they had to meet the wishes of those who would not come to the school if required to do more than the irreducible minimum of work demanded by the state. No vexatious obstacles must be thrown in the path of possible students. Entrance requirements were accordingly scrupulously avoided. In the second place, it was impracticable to offer these students more techni- cal work than a considerable number could reasonably be expected to take, whether influenced by the desire of knowledge for its own sake, or by other considerations. The schools could offer a little more, but not much more, than the states required. The promise of a degree was utilized for the purpose of making this extra work attractive. Prior to the Civil War, two years of honest work was, on the whole, or was thought to be, a little more than the traffic could bear. Conse- quently the schools came as near to this standard as they dared. Some made no pretense of giving more than a single year's course. Some gave a two years' course only in name. Some granted concessions to partic- ular types of applicants, or made small demands upon the time and energies of any student. Harvard came to two full years of work, but did not raise its briefer degree requirement to correspond. Cumberland, after experimenting with two years for both course and degree, reduced 1 For the practically valuable privilege of exemption from bar examinations, eventu- ally attaching to the degrees of many schools, see below, pages 248-953, 263 ff. 180 RISE OF LAW SCHOOLS both to a year and a half. The University of North Carolina, starting with a similar high requirement, declined to make any reduction, and in consequence had many casual students, but few graduates. Its ex- perience indicates that other schools were justified in not attempting to advance beyond what the conditions of the times allowed. Before American university law schools could do much to raise the level of legal education, they had to acquire the prestige that belongs only to long established institutions. After the Civil War, law schools had ceased to be experiments. At the same time the states were beginning to stiffen their own bar ad- mission requirements, and the increasing complexity of the law made a lengthening of the course imperative. The time, in short, was ripe for an advance not merely to a genuine two-year standard, but even beyond. The addition of an obligatory third year to the degree course was, however, a bold step, from which at first the schools shrank. An optional third year, in which a higher degree might be earned, was first instituted by Columbia and later by several other schools. Har- vard was the first law school to recognize the futility of this device, and to announce, in its stead, a lengthening of the course of study required for its original LL.B. After it had demonstrated the possi- bility of maintaining a law school on this basis, three years became the accepted standard for the leading law schools. The general adoption of this three-year course during the following generation, through the efforts of the American Bar Association, and the eventual revival of the device of optional postgraduate degrees as a substitute for a further advance to a four-year course, are topics that can best be discussed in a survey of contemporary legal education. Merely to complete the record, it may be briefly stated that, in spite of the tremendous multiplication of law schools during this period,'' the number of institutions that conferred the first degree after a course of less than three years was reduced from fifty-four in 1890 to twenty- three in the year of the declaration of war with Germany, and has continued to diminish since then.^ During this period, however, the remaining institutions have become very different from one another, owing to the accentuated distinction between schools that require the 1 See below, page 193, and Appendix, page 444.. 2 In the academic year 1920-21 there were only a single one-year school (Cumberland) and fifteen two-year schools, all located in southern states, Washington, D.C., and Indiana. HANDICAPS OF THE LAW SCHOOLS 181 full time of their students as against those that do not, and owing to the feet that many of the fuU-time schools have established high en- trance requirements. A classification of law schools on the single basis of the number of years that intervene between admission and gradua- tion has never been a satisfactory one, and is now completely artificial and misleading. CHAPTER XVII ORGANIZATION AND FINANCIAL SUPPORT OF THE TEACHING STAFF 1. Number of Instructors INSTRUCTION in these schools was at first usually given by a single teacher, as in the original southern schools, in Litchfield prior to 1798, and in the abortive attempts in the middle states. Under the influence of the later Litchfield school, however,''^ Harvard and Yale started with two instructors,^ and Cincinnati Law School and New York University, in the decade between 1830 and 1840, started with three. Such comparisons are of little value. Always, especially in the cities, a larger number of instructors has usually signified merely that judges or practitioners give only part of their time to the school, rather than that a more comprehensive course of instruction is offered.^ The tendency in every school has, of course, been to expand its faculty, but the University of Louisiana seems to have been the only one to claim as many as four professors prior to the Civil War. The Uni- versity of Michigan added a fourth professor in 1866. Harvard and Pennsylvania did not rise to a fiiU four-man basis until 1874. Dwight conducted his Columbia school virtually single-handed until 1875. By counting in lecturers, etc., in 1870 three schools, including Dwight's, claimed a faculty of six. Harvard claimed seven, and Washington Uni- ■^ersity (St. Louis), eight. The present long lists of men giving all or part of their time to a school are more recent phenomena. Faculties of fifteen or more are now^ not uncommon. 1 See above, pages 130, 131. 2 Pages 138, 141. ' So, for instance, in Cincinnati, where the faculty of three — a judge, and two practi- tioners who had studied, one at Litchfield, the other at Harvard — offered a course completed in a single session of four months. For what the information is worth, it may be recorded that the following is believed to be a complete list of the schools that started with or rose to a three-man basis between 1840 and the Civil War : Tran- sylvania, 1840; Universityof Louisville, 1846; Princeton, 1847; Louisiana (four pro- fessors), 1847; Harvard (two professors and a lecturer), 1848; University of Albany, 1851 ; University of Pennsylvania, 1852 ; University of Nashville, 1854 ; Cumberland, 1856; Harvard (three professors), 1856; University of Georgia, 1859; University of Michigan, 1859; University of Chicago, 1859. UNIVERSITY LAW SCHOOLS 183 2. The Dominant Type of University Law School The typical American law school, after Harvard and Yale had provided the formula, became, and has continued to be, one that is associated, loosely or intimately, with a non-vocational college. As the various vocational departments of the parent institution have grown in im- portance, its title has usually been changed from "college" to "uni- versity." As regards the organic relationship of the law faculty to the univer- sity at large, the principal distinction during the early years was be- tween Harvard and Virginia, on the one side, where the law school re- ceived effective financial support, and all other schools, where it did not. Whether, following the model of Yale, these other schools were adopted children,^ or were ostensibly founded by the university, their practi- tioner teachers were in all cases left to fend almost entirely for them- selves. Even when the school had no existence prior to the appointment of a practitioner as Professor of "Jurisprudence" or of "Law," the ini- tiative came quite as often from the practitioner as from the college. A lawyer member of the board of trustees was peculiarly in a position to put through a friendly arrangement whereby a proprietary law class might advertise itself as a university school, conferring upon its gradu- ates an academic degree, and often also given at least the use of rooms in the college building. Greater financial assistance than this, a weak denominational college was usually unable to provide. Nor, in the case of a state university, was the legislature disposed to expend public money for any such purpose as legal education. Lawyer members were satisfied with the office training that they had themselves received; lay members were not interested in helping an unpopular profession.^ Under such circumstances it was eminently proper that the practitioner teachers, who assumed aU the risks, should collect aU the fees. Not every financial fact is known in regard to every school. Certainly, however, the over- whelming majority of schools prior to the Civil War were conducted 1 Cincinnati Law School, founded 1833, adopted by Cincinnati College 1835; Lump- kin Law School, founded 1843, adopted by the University of Georgia the same year; Battle's Chapel Hill School, founded 1843, adopted by the University of North Caro- lina 184S; Lexington Law School, founded 1849, adopted by Washington College, later Washington and Lee University, 1866. 2 As late as 1880, it was possible for a member of the American Bar Association to enquire, " I would like to know in what state a legislature would consent to expend public funds for the education of lawyers. It would be extremely unpopular." In 1892 a member denounced such action as unconstitutional. 184. RISE OF LAW SCHOOLS thus by educational promoters rather than by a salaried stafF.^ Effective control can be secured only through the power of the purse. While, in a purely formal sense, the contribution of the mid-century may be summed up as the definite assumption of the burden of legal education by the American college, the burden must be confessed to have sat lightly upon it for the time. For all practical purposes, these were in- dependent schools masquerading in university guise. In varying mea- sure they doubtless did meritorious work along the lines of the original Yale school, relatively untouched either by the idealistic breadth of Virginia or by the scholarly traditions of Harvard.^ In view of the prevailing poverty of the colleges and the early un- popularity of law schools both in the profession and in the community at large, it was inevitable that in many schools this phase of a purely nominal university connection should come first. The generation prior to 1870 performed the invaluable service of disseminating this type of school throughout the country. It was a great accomplishment to con- struct so much educational machinery. Subsequent generations have put this inheritance to better use, sometimes a little too much in a spirit of contempt for their predecessors. Due credit has not always been given to the courage and self-sacrifice displayed by educational promoters, by "profjrietary law school teachers," in their efforts to bring primi- tive institutions into existence and to keep them alive — to establish, in short, against the hostility of the profession itself, the claim of the American college to participate even in a nominal way in the profes- sional training of American lawyers. With the passage of years, however, the parent institutions of these schools, and of others more recently organized, have usually, though not invariably, recognized that their own reputation is endangered by the presence of uncontrolled elements in the university organization, and have therefore adopted one of two policies. Some have either abol- ished the law school or cut it adrift; others, as their resources have 1 The only known exceptions are Virginia, Harvard after 1829, and, at the very close of the period, the University of Michigan. ^ The Harvard tradition of scholarly publication was continued by Greenleaf (1842- 50), Parsons (1853-69) and Washburn (1860-68). Judge Cooley's series of publications fi'om the University of Michigan, appearing between 1868 and 1880, may perhaps be reckoned as the next notable contribution to legal scholarship outside of Harvard. Mention may also be made of Timothy Walker's Introduction to American Law, 1837 (Cincinnati Law School); Sharswood's Professional Ethics, 1854, and Blackstone, 1859 (University of Pennsylvania) ; Minor's Crimes and Punishments, 1869, and Institutes, 1875-95 (University of Virginia). UNIVERSITY LAW SCHOOLS 185 permitted, have centralized the iinancial administration of the law department, collecting the fees and defraying the expenses, including salaries to the instructors. A condition of virtual independence, during which schools were transferred from one college to another^ or were even run under the auspices of two colleges simultaneously^ and some- times took out separate charters of incorporation,' has tended to be converted into a situation more resembling "home rule" — a type of university organization in which a strong tradition of local self-gov- ernment survives under a theoretically absolute control possessed by the univei"sity authorities. So Columbia, in 1878, ended Dwight's large profits from his successful law school by putting him on salary. The Cornell school prided itself upon being, from its beginning in 1887, " coordinate in all respects with other university departments."* Other important universities that soon adopted the policy of collecting the tuition fees and defraying the expenses of their law departments were the University of Pennsylvania in 1888, New York University in 1889, and Northwestern University in 1891, upon the death of Henry Booth, the original dean and proprietor of the law school. If many universities have been slow to effect this change so that even to-day examples of the masquerading type of university law school may be found,^ the reform is none the less one that in time is pretty certain to be introduced everywhere, because of its obvious desirability. The beneficial effects of this more intimate connection between the school and the university authorities consist partly in the opportunity it gives to a vigorous president to remodel a department that in his judg- 1 So the Iowa College of Law, transferred from Simpson Centenary College to Drake University in 1881. 2 Illinois' oldest law school, founded by the old University of Chicago in 1859, was operated between 1873 and 1886 as a joint department of this now extinct institution and of Northwestern University, under the name of the "Union College of Law." ' So the University pf Georgia's Lumpkin Law School, in 1859 ; Northwestern 's Union College of Law, after the dissolution of the partnership with the University of Chi- cago, in 1888 ; Lake Forest University's Chicago College of Law in 1888. In the two first named instances the charters proved to be without practical im- portance. The Chicago College of Law, on the other hand, later combined with the Kent Law School, a corporation formed by seceders from the Union College of Law, and since 1902 has been frankly independent, under the name of the Chicago Kent College of Law. * It was manned by resident professors called from other institutions, and was one of the first schools to carry the passion for university symmetry to the point of prescrib- ing fifteen hours weeldy instruction for students in all departments. ' The University of North Carolina did not assume the budget of its law school until 1899, Yale not until 1904. 186 RISE OF LAW SCHOOLS merit, as responsible head of the university, requires such treatment. Eliot's regeneration of the Harvard law school in 1870, after its quarter century of staleness following Story's death, is the most conspicuous illustration of what may be accomplished by this means. EflForts to change the character of the Columbia school, when Dwight was relieved from financial control, failed at the time, because of his international reputation as the foremost law teacher in America,^ but were later re- sumed, with greater success, by President Low. More important, how- ever, than the centralization of authority in hands where it may or may not be wisely exercised, is the fact that the placing of the teaching staff on fixed salaries frees them (supposedly) alike from financial embarrass- ments and from the temptation of inordinate financial gain, and thus removes a direct personal incentive to identify " success " with a large attendance of paying students. In a few cases, the orderly development of law schools, loosely affili- ated with a college, into either true university departments on the one hand, or into a condition of avowed independence on the other, has been checked by the fact that the loose form of union originally adopted was one that could not easily be changed. The terms on which the Albany Law School, for instance, became a part of the so-caUed Union Univer- sity, in 1873, are described in the following section. Hastings College of the Law, of San Francisco, while nominally affiliated with the State University located at Berkeley, possesses a protected position, under the act of legislature establishing it in 1878, which ha^ proved a great embarrassment to the university authorities in recent years. Since then a few other schools have made contractual arrangements with colleges, which make it difficult for the latter either to make the connection more intimate or to break it off altogether. And not infrequently, es- pecially when the law school is situated in a different town from the college or university, the authorities of the latter have been contented with an arrangement that relieves them from either financial or edu- cational responsibility. In general, however, there has been no organic reason why a closer financial union, caiTying with it some measure of university supervision 1 See the opinions of Dicey and Bryce, quoted in A History of Columbia University, 17B4-1904, p. 343. These opinions were expressed on the basis of visits made in 1871. By 1885 Harvard had begun to secure English recognition. For the importance attached to this, see Wigmore's account of the impression produced that year upon Harvard students by the visits of Finch and Pollock, in 30 Harvard Law Review (1917), 815. AGGREGATIONS OF PROFESSIONAL SCHOOLS 187 over the work of the law school, should not be substituted for the origi- nal loose union, and this has been the strongly prevailing tendency. The typical American university has developed along lines that render it increasingly possible for its historic nucleus — the college of liberal arts — to make its influence felt upon the professional law school. Not only is the taint of commercialism thus removed from these schools, but within the present generation study in the college has come to be required by many universities as a necessary preliminary for the tech- nical work of the law department. Or, to sum up, the organic develop- ment of the university started with the loose attachment, to a college, of virtually proprietary professional schools. Next came a system of co- ordinated college and professional departments, dominated by similar ideals, but competingwith one another for students. Now many of these have developed into a type of university of which the college is not merely the core but also the basis and fertilizing ground ; in the liberal education provided by the college the work of advanced professional schools is definitely rooted. 3. Aggregations of Professional or Vocational Schools In 1890 about five-sixths, in 1917 about two-thirds, of the total num- ber of residential degree-conferring law schools were of the general type above described. The remainder were either parts of compound insti- tutions not containing genuine colleges of liberal arts, or were wholly independent. The earliest representatives of the compound institution originated in an effort to expand medical schools, rather than colleges, into uni- versities. The first unsuccessful attempt to build up the University of Maryland at Baltimore, in this manner, has already been described.^ Similar attempts produced the law schools of the University of Louis- ville in 1846, and of the University of Albany in 1851 ; and in 1870 the Maryland school was revived, under the original charter. In all three cases the following was the sequence of events : first, the existence of an already successful medical school; second, the securing of a broad university charter, under which coUege and law departments might be operated with power to confer appropriate degrees; third, the actual launching of the law department, at the dates named; fourth, at a much later date, the final realization, at least in a formal sense, of the original 1 Pages 123-126. 188 RISE OF LAW SCHOOLS university project. The steps by which this consummation was reached, and the nature of the finally created university, have not been so uni- form. In Louisville, the medical and law departments were the only ones organized until 1907, when a grant of municipal funds finally made it possible to open a college, of a type differing widely from the old- fashioned cultural institution. The University of Maryland similarly consisted only of medical and law departments until this same year (1907), when it entered into a nominal affiliation with old St. John's College, at Annapolis. In Albany, even the medical school declined to surrender its independence on the terms originally contemplated, so that, for over twenty years, only a law department operated under the university charter. Finally, in 1873, through legislation and agreement, the medical school, the law school and an astronomical observatory, all located at Albany, and old Union College of Schenectady were nomi- nally combined into the present so-called Union University. Although under the new charter the title "Albany Law School" was substituted for the original "University of Albany," the school retained power to control its own property and to confer its own degrees. A joint annual commencement, held for ceremonial reasons, seems to be the sum and substance of the university connection. Later surviving law schools, that owe their origin to similar causes, are those operating under the names of National University (Washington, D. C.),^ University of Buf- falo^ and University of Memphis.^ After the Civil War the precedent set by medical schools was fol- lowed by other institutions. The law school of Boston University grew in a similar way out of a long established theological school.* Although 1 Under the original charter secured under the general Incorporation laws in 1869 (newly chartered by special act of Congress in 1896), the department of law was the first to be organized, in 1870. A night medical department was also operated after 1884, and also a dental department for a time. Since 1906, or earlier, however, the law school has again been the only department. * A group of practitioners organized a law school in 1887. At the outset they secured the privilege of obtaining degrees from the Roman Catholic University of Niagara. Two years later, however, they took advantage of the broad University of Buffalo charter, under which a local medical school had operated since 1846. 3 Formed in 1909 by adding to an already existing medical school departments of pharmacy, dentistry and law. By 1913 all departments except the law school had been taken over by the State University. * Boston Theological Seminary, organized about 1847, was formally transferred to the new university trustees in 1871. The following year the School of Law and a Col- lege of Music were added ; a year later, a College of Liberal Arts, a homeopathic medical school, a School of Oratory, and a preparatory academy located in Rhode Island. INDEPENDENT DEGREE-CONFERRING SCHOOLS 189 a "college of liberal arts" was promptly added, the absence of dormi- tories differentiated this from the traditional American college. In the Middle West the absence of other adequate provision for the training of public school teachers resulted in the rise of private normal schools. By 1890, five of these, as an incident of attempts to develop into "uni- versities," had started law schools.^ Still later, business colleges, and the Young Men's Christian Association as part of its general system of vocational training, entered the field. Including a few residential off- shoots of the correspondence school movement, the outbreak of the War with Germany found degrees being conferred by about twenty law schools that on the one hand were not avowedly independent, but on the other hand stood apart from the beaten track of university develop- ment. 4. Independent Law Schools with Power to Confer Degrees Faced with the competition of these two types of institutions, the old- fashioned private law school of the Litchfield type, after the middle of the century, became almost extinct. So far as is known, only one such institution was started between 1850 and the Civil War, and only one during the following decade.^ The explanation is to be found only in small measure in the financial support given to the university schools. This, as we have seen, was prevailingly slight. It was due rather to the prestige of the college or university name, and above all to the power they possessed under their charters to confer degrees. That this academic distinction might be awarded by an avowedly independent law school seems not to have been regarded as a possibility, prior to the Civil War. The English LL.B. had stood for an academic training in general culture and Roman law. TTie American LL.B. had come to stand for purely vocational work, but still the tradition persisted that it must be conferred by an academic body.' Already, however, the force of this tradition had been weakened by 1 Valparaiso University, Indiana, 1879 ; National Normal University (Lebanon Uni- versity), Ohio, about 1884; Ohio Normal University (Ohio Northern University), Ada, Ohio, 188S; Central Normal College, Danville, Indiana, 1888; Northern Illinois Normal Institute, Dixon, Illinois, 1889. 2 See Appendix, page 433, for the names of all such schools that have been found, prior to 1890. Doubtless others existed. 3 In 1859 the Lumpkin Law School, affiliated with the University of Georgia, was empowered in its separate charter of incorporation to issue diplomas which would admit to practice. Nothing was said, however, about degrees, which since this date have been conferred by the University. 190 RISE OF LAW SCHOOLS certain special developments. In the first place, old Cincinnati College, when in 1835 it took the recently established Cincinnati Law School under its wing,^ made a similar incursion into the field of medical education. This latter experiment, however, was abandoned in a year or two; and about 1845 the entire attempt to build up a university collapsed, through the closing of the original academic department. This left only the law school operating under the original college charter. The recent history of legal education in Cincinnati has largely revolved around the attempt of the new municipal University of Cin- cinnati to absorb this institution, whose independence was fortified by its possession of the original college endowment and the valuable de- gree-conferring privilege. After an attempt to secure control through legislation had been defeated by the courts^ and a rival school had been operated for a single year, in 1897 a fusion faculty was formed under the College and a contract was entered into whereby the Uni- versity was to furnish funds without exercising control. In 1910 this anomalous arrangement was terminated and the school again became independent of the University in name as well as in fact. It is the only instance in this country of a law school which, after having been at one time affiliated with an old-fashioned college, inherited all the latter's rights and possessions.' Here, then, was a la w school which, although operating under a college charter, was, as a matter of fact, independent. Furthermore, the sanc- tity of the academic tradition in regard to law degrees was not helped by the fact that at just about the same date the Louisville LL.B. began to be awarded, in theory by a "university," but in practice by a law school nominally controlled by a medical school. And after 1851, as we have seen,* there was also a "University of Albany" which consisted of nothing except a law school. With these hollow mockeries before them, it was small wonder that the attitude of the public toward the LL.B. slowly changed. During the generation before the Civil War, this de- gree secured that limited popular recognition (as compared with the genuine respect paid to the M.D.) that it now enjoys, but in the process of becoming popularized its original slightly academic flavor was irre- 1 The college was chartered in 1819; the private law school was started in 1833. 2 Ohio V. Mf, m Ohio State (1895), 375. * Finally, in 1918 the school was again absorbed by the University, on terms reflect- ing great credit upon both parties. * Page 188. INDEPENDENT DEGREE-CONFERRING SCHOOLS 191 trievably lost. It became the symbol of a successfully completed pro- fessional law course — this and nothing more. The theory that only col- leges or universities might properly confer an LL.B. became too trans- parent a pretense to be continued. The final step was taken in 1866. A night law school, started the year previously at Des Moines by two justices of the Iowa Supreme Court, with whom William G. Hammond had become associated later in the same year, was incoi-porated as the Iowa Law School, with power to confer the LL.B. degree. Twelve graduates actually received the de- gree in 1866. The event may be said to mark the culminating triumph of the practitioner over the cultural college in his effort to retain con- ti"ol of legal education. In the great majority of cases the entrance of the college into this field had not operated to broaden the ideals of the original Litchfield type of the school. On the contrary, it resulted in the private schools' running off with the imposing panoply of a " bach- elor's degree." Henceforth, if the universities were to seek adventitious aids for the purpose of attracting law students within their gates, they must appeal to the state for special privileges. They could not rely upon the mark of academic distinction by which the European university had fostered the solidarity of the educated class. They could not claim the exclusive right to determine, through the conferring of a consecrated degree, who should or should not be recognized as highly educated. This new type of independent law school did not assume any impor- tance for some years. Hammond's own school was absorbed almost at once by the State University,^ and the only other avowedly independ- ent school that conferred degrees prior to 1890, so far as known, was the Central Indiana Law School, started in Indianapolis about 1881, but not surviving the decade.^ The type was unnecessary for the mo- ment, for the reason that its special advantages from the point of view of its promoters — power to confer a degree, coupled with freedom from 1 In 1868 the faculty was annejced and removed to Iowa City, under a contract whereby the University agreed to recognize degrees already conferred by the school as its own. Hammond, chancellor first of this school and later of the St. Louis Law School (Washington University), was at one time a prominent representative of the law schools at the meetings of the American Bar Association and chairman of its Committee on Legal Education. In 1875 another member of the original faculty organized at Des Moines the Iowa College of Law, mentioned on page 185 as having been afiUiated first with Simpson Centenary College, and later with Drake University. 2 This school was never even incorporated. Its graduates claim, however, to have received the LL.B. This is the most extreme degradation of the original theory of the LL.B. that has been discovered- 192 RISE OF LAW SCHOOLS the control of trustees — could be better secured in other ways. The movement to multiply law schools coincided with a movement to mul- tiply universities. The trustees of colleges or other institutions which possessed or might acquire the power to confer university degrees of every sort were only too willing to grant the use of it on easy terms. This would have been the golden age of law schools if "academic free- dom " were all that is necessary for educational salvation. Law school fac- ulties in general were allowed to do about as they pleased, and with few exceptions were already, to all intents and purposes, proprietors of the school, assuming the risks and pocketing the profits, if any. It was a the- ory of educational organization that lent itself to the mushroom growth of so-called university schools which, as already pointed out, sometimes have survived in substantially their original form, sometimes have de- veloped into genuine law departments, of the Virginia-Harvard— Michi- gan type, often, however, have abandoned the struggle for existence. In 1890, however, came the historic controversy between President Low of Columbia and Theodore Dwight over the question of intro- ducing the Harvard case method, as a result of which Dwight with a portion of his faculty left the school. For the purpose of perpetuating Dwight's methods of instruction, his adherents organized the New York Law School. Their success in securing, first from the New York Board of Regents in 1891, and six years later from the legislature, a special charter, giving them power to confer degrees, opened the eyes of law school promoters throughout the country to the possibility of securing this great advertising advantage without dickering with a college.-' The discovery coincided with the growing demand for night law schools, which could be started most easily in this way. In 1917 there were twenty-six frankly independent degree-conferring schools, besides three that operated under the cloak of a college or university charter.^ It should be noted also that among the schools connected with colleges are some where the connection is very slight, and the college does not dare to make it closer for fear of losing even its present slight hold. With the breaking of the academic monopoly in law school degrees, the college has lost one of its points of leverage upon legal education. 1 See below, page 234., note, for a recent Massachusetts episode, especially illumi- nating because here, as in New York, general legislation designed to prevent the in- discriminate granting of degrees had been previously enacted. In most states inde- pendent law schools have no diflBculty in securing the degree-conferring privilege under general laws. 2 For number of each type of organization, see Appendix, page 145. CHAPTER XVIII MULTIPLICATION OF LAW SCHOOLS AND LAW SCHOOL STUDENTS AFTER THE CIVIL WAR 1 . Number of Law Schools AT the outbreak of the Civil War, the total number of degree-con- ■iX fen-ing law schools was twenty-two, of which eight were in the southern states, including Kentucky. There were at this time sixty-five medical schools. As a result of the conflict, all the southern law schools except the University of Virginia were closed, but all except old Wil- liam and Mary promptly resumed operations.* Only one northern school closed during the war, and new ventures or revivals of old schools, both in the North and in the South, brought up the total by 1870 to thirty- one, or double what it had been twenty years before. Between 1870 and 1890 this figure was again doubled, and between 1890 and 1910 doubled once more. By this date the saturation point had been nearly reached. The rate of increase since then has been much more moderate.^ Law schools still continued to increase, however, while, since 1904, thenum- bier of medical schools had begun to diminish. In 1910-11 the number of law schools for the first time exceeded that of medical schools, and since then the excess has become progressively accentuated.' The Civil War decade saw the beginning of the modern part-time law school intended for students engaged in other occupations* and the first law school for negi'oes.' This was also the first decade in which law 1 The law school of the University of North Carolina did not suspend operations until 1868, reopening in 1877. ^ The following table shows how the number of law schools doubled every twenty years between 1790 and 1910 : 1790 1810 18S0 1850 1870 1890 1910 Number of schools surviving 1 2 6 16 31 61 124 The decade showing the greatest arithmetical increase was 1890-1900 : net increase of 41 schools. At the outbreak of the War with Germany, there were 140 schools ; in 1920-31, 142. For further details, see Appendix, page 444. ' According to the statistics of the American Medical Association, the number of medical schools in 1916-17 had fallen, after a large intervening increase, below the fig^e of 1880. The number of law schools meanwhile had increased nearly 175 per cent, and from having been 4fl per cent under was now 46 per cent over the medi- cal school figure. In 1920-31 the excess was 69 per cent. For comparative figures, see Appendix, page 443. * See below, pages 394-402. 5 The law department of Howard University, Washington, D. C, still in operation, was opened in 1868. In the Chronological List in the Appendix will be found the names of eleven subsequent colored schools, of which one claims to be still in existence. 194 RISE OF LAW SCHOOLS schools were permanently planted west of the Mississippi,' in which law schools were operating in a maj ority of the states, and in which the dupli- cation of law schools in a single state began to be common. Since then the number of states containing law schools has doubled. Since 1840 schools have been planted, in states where they did not previously exist, at the average rate of one every two years. In 1917 there were only seven states not provided with a law school.^ The principal cause of the recent increase in the number of schools, however, has been their multiplication within states already containing one or more. Once a law school had been established, it bred rivals very quickly. In 1859-60, of the fifteen states containing law schools. New York had four schools, Virginia, Kentucky and Indiana had two apiece, the other eleven states only one. After 1880 a majority of the states, if they had any law school, had more than one. In 1890 seven states contained three or more schools each, aggre- gating almost half the total number of schools. In 1917 nine states, with five or more schools apiece, accounted for over one-half of the total. Indiana and the District of Columbia each contained eight, New York and Ohio nine, California ten and Illinois twelve law schools.^ The great urban development after the Civil War has exerted a marked influence upon the number and distribution of law schools. Large cities have more and more established their claim to be regarded as the natural home of legal education, partly because little old towns, like Cambridge, in which schools had already been started, grew into cities or suburbs, but more because practitioner teachers and students for new schools could thereby be most easily secured. Until 1870 New York was the only city which supported two law schools. By 1890 Chi- cago and Baltimore also had two schools, and Washington, D. C, four, including the Howard University school for negroes. Of cities contain- ing over 100,000 inhabitants, 46 per cent had law schools, aggregat- ing 31 per cent of the total number. In 1917 St. Louis and San Fran- cisco each had four schools, New York City five, Washington eight and Chicago nine. No less than 59 per cent of the cities containing over 1 In addition to Hammond's school,'absorbed by Iowa State University in 1868, the St. Louis Law School ofWashington University, to which Hammond was subsequently called, was started in 1867 ; the University of Wisconsin College of Law in 1868. "New Hampshire, Vermont, Rhode Island, Delaware, Nevada, New Mexico and Wyoming. In 1920 the University of Maine College of Law was suspended, and a branch of the Northeastern College School of Law of the Boston Y. M. C. A. was started in Providence, Rhode Island. 3 For details of the development, see Appendix, pages 446-447. RELATIVE ATTENDANCE AT LAW SCHOOLS 195 100,000 inhabitants^ now had law schools, and the aggregate of these large-city schools was eighty-five, or more than 60 per cent of the total number of law schools in the country.^ 2. Relative Attendance at Individual Lam Schools The two largest ante-bellum law schools were both hurt by the Civil War, though in unequal measure. Cumberland's buildings were burned. Harvai'd lost its southern clientele.' The new University of Michigan school, helped from the outset by the University's liberal financial policy, and, after 1864, by the distinguished career of Professor Cooley on the Supreme Court bench of his state, immediately assumed the lead in number of students and in reputation throughout the northern and middle West. Two years after the war (1866-67) it had 395 stu- dents, or more than double the record pre-war attendance of Cumber- land. Simultaneously, in the rich New York City field, Dwight's Co- lumbia school scored a decisive victory over New York University. It enjoyed the unique distinction of increasing its attendance during each year of the war,* and after having been at one time distanced by the new part-time school of Columbian College, Washington, D. C. (the present George Washington University), ended the decade as the sec- ond largest school in the country, with well over 200 students. Harvard had to be content with fourth place, with Albany fifth and Virginia sixth. No other law school had as many as 100 students. In 187^73 Columbia wrested the lead from Michigan, attaining three years later the record figure of 573. By the end of this decade Judge Hastings' recently founded school in San Francisco had secured third place, with Harvard fourth. In 1890 Columbia and Michigan, 1 Census figures of 1990. 2 Of cities containing over 200,000 inhabitants, only five lacked law schools in 1890 (Brooklyn, Milwaukee, Cleveland, Pittsburgh and Detroit), and only four in 1917 (Jersey City, Rochester, Providence and Akron). The aggregate number of schools in cities of this size was IT in 1890 and 72 m 1917— respectively, 28 per cent and 51 per cent of the total number. In 1920 a school was started in Providence. 3 In 1829-30, out of a total of 24 law students listed in the Harvard College catalogue, 18 were from Massachusetts, 2 from other New England states, 4 from the South. The percentage of attendance from southern or border states in subsequent years was : 1839-40, 20 per cent ; 1849-50, 22 per cent; 1859-60, 23 per cent. The latter figure in- cluded 11 per cent from the seceding states alone. Compare page 153, note 6. * For a detailed study of the effect of the Civil War upon law school attendance, see 12 Annual Report, Carnegie Foundation (1917), 119-123 ; and compare, as to the im- mediate effect of the War with Germany, the writer's pamphlet. Legal Education dur- ing the War, 1918, 1-12 (an expansion of 13 Annual Report, 121-122). 196 RISE OF LAW SCHOOLS with over 400 students apiece, were still the two leading schools. Har- vard, with between 250 and 300, was now a poor third. Two part-time schools in Washington, D. C, each contained over 200 students, and Harvard's Boston rival nearly as many. Since 1890 two principal causes have affected the relative attendance at individual schools. In the first place, the raising of standards by suc- cessive schools has usually, though not invariably, been reflected in a diminished attendance, at least for a time. In the second place, under a system of free competition among law schools the increasing group of part-time schools has had the double advantage of securing students who are excluded from other institutions by the raising of standards, and students who could not under any circumstances have attended a full-time law school. The most conspicuous illustration of a school which has profited in reputation and attendance by a bold advance is Harvard. Its action in requiring a college degree for admission, if it operated to exclude some local students, attracted college graduates from all over the country. For nearly twenty yeai's the rise of large part-time schools kept it in third, fourth, or even fifth place. Meanwhile, however, its own attend- ance steadily climbed with very few recessions, until first in 1910-11, and again in 1916-17, it regained its original position as the largest American law school, with over 850 students. Columbia and Michigan have not fared so well. At Columbia the forcible introduction of the Harvard case method, against the opposi- tion of a considerable portion of the faculty and the local bar, led to the starting of the rival New York Law School, which at once became the second largest school in the country, and in 1904-05 outstripped even Michigan. In 1906-07 this school had 1050 students, establishing a record for all schools prior to the War with Germany. Faced with com- petition from this source, and from the New York University law school, the Columbia attendance dropped at once to between 200 and 300; then gradually rose to between 400 and 500; then, following the require- ment of three college years for admission, lost its entire gain, drop- ping, in 1907-08, to less than 250 students. In 1916 it had risen again to over 500. Meanwhile, Michigan's curve had been just the reverse of this. Regaining in 1892, after the Columbia debacle, its position as the largest law school in the country, it kept this primacy for thirteen years, with a steadily mounting attendance that exceeded 900 when it was finally passed by that of the New York Law School. Then came an RELATIVE ATTENDANCE AT LAW SCHOOLS 197 increase in Michigan entrance requirements, followed by a loss of stu- dents, notably to Detroit part-time schools, which reduced the attend- ance to between 500 and 600 in 1916. In other words, Michigan and Columbia were together again, but after a lapse of a quarter century their attendance had increased very moderately, and instead of being the two largest schools, they now ranked as seventh and eighth. The other large law schools since 1890 have all been institutions of- fering part-time instruction either exclusively or in addition to full-time work. Several of these have already been mentioned. The University of Minnesota law school had over 600 students in 1909. For five successive years, beginning 1911-12, the Georgetown University law school with approximately 1000 students was the largest in the country. During three of these years, Chicago Kent came second, at one time exceeding 800. In 1915-16, the six schools having over 600 students, all located in or near large cities, were, in the order of their size, Georgetown, Harvard, New York University, Chicago Kent, University of Southern California, New York Law School, with Michigan and Columbia the only two others having more than 500 students.^ "Large law schools," it will be seen, are now, roughly, five times the size of such institutions prior to the Civil War. This does not mean, however, that legal education is being concentrated in a few centres, at the expense of smaller institutions. On the contrary, the tendency of law school growth since 1870 has consistently been in the opposite direction, as appears from the following table, which shows the per- centage of the total number of law school students contained at the given dates in the largest school or group of schools. 1869-70 1879-80 1889-90 1899-1900 1909-10 1915-16 /o /o /O /O A) /O Largest school 18 14 10 6 4 4 Largest two schools 31 26 19 13 9 8 Largest three schools 41 32 25 18 13 11 Largest six schools 61 46 38 31 22 19 ^ The figures used in the above comparison are those of the U. S. Commissioner of Education. For table, see Appendix, page 452. For the year 1916-17, during which war was declared, no comparative statistics were published, and although efforts were made by the Foundation to secure figures, in the confusion of the time not all schools could respond. Harvard, however, reported 857 and Georgetown 823 students. In 1919-20 the catalogues showed: Georgetown, 1052; New York University, 9T9 ; Harvard, 883 ; George Washington, 752 ; Fordham, 687 ; Suffolk, 591 ; Columbia, 543; Boston, 522 ; no other school as many as 500. These figures include summer students. 198 RISE OF LAW SCHOOLS 3. Aggregate Number of Law School Students In 1860 the total number of law school students in the United States was about 1200, or four for each hundred thousand of the population. During the next thirty years the population increased at a uniform rate each decade, almost precisely doubling by 1890. The number of law school students, however, increased during this period nearly fourfold, to over 4500, or seven for each hundred thousand inhabitants. This was relatively a larger increase than occurred in the two other so-called learned professions. Legal education was still, however, a comparatively unimportant branch of higher education. Between 1870 (the first year for which comparative statistics published by the U. S. Commissioner of Education are available) and 1890, law school students rose from one-seventh to one-sixth of the total number of professional students. Since 1890 the population has increased more slowly. The number of law school students has meanwhile increased more than fivefold, to approximately 23,000 at the outbreak of the War with Germany, or twenty-three for each hundred thousand inhabitants; the numberof the- ological students has increased almost uniformly with the population; the number of medical students, after an intermediate increase, is now smaller than in 1890, and, proportionately to the population, smaller than in 1870. The number of law school students soon exceeded that of theological students, and since 1911 has exceeded that of medical students. It now constitutes about 40 per cent of the total attendance in these three branches of professional education.^ In interpreting these figures, care must be taken not to confuse "law school students" with "law students." The increased attendance at the law schools has been due to a combination of causes. In the fii-st place, owing to the transformation of the country from an agricultural to an industrial community, there was a genuinely increased demand for law- yers, which soon came to be more than fully satisfied by a general drift into the professions. This led to an increase in the number of law stu- dents, including under this term those who studied either in a law school or in a law ofiice.^ In the second place, the schools having now estab- lished their reputation of affording in general, within certain limits that will shortly be discussed, the best preparation for admission to the bar, > For tables, see Appendix, page 443. 2 This drift was part of a still broader tendency, reflected in a simultaneous great increase in the number of college students, to secure a type of education that carries with it a suggestion of superior social standing. AGGREGATE NUMBER OF STUDENTS 199 an increasingly large proportion of these law students resorted to the schools in preference to the offices. And in the third place, when the ini- tial difficulties of launching a law school had been overcome, the further obstacles to its progress were comparatively slight. Both because of the low standards of admission to the bar, and because of the direct finan- cial interest often felt by the school authorities in seeing the school in- crease in size, and because, finally, study of the law has, or can be made to have, a much broader appeal to young men than medicine or theol- ogy, opening the door as it does to politics and business, rather than demanding a highly specialized aptitude or a spiritual calling — for all these reasons the whole tendency of the system was to make law schools grow beyond the immediate needs of legal practice in the old-fashioned narrow sense. Law schools, especially night schools and state university schools with low tuition fees, by making legal education more easily at- tainable, served as training schools for a new type of law school gradu- ates who might or might not practice according as the opportunity should later arise. They thus broadened or demoralized — in any case transformed — the profession they were originally designed to serve. They moved forward of their own momentum, creating a new field in addition to cultivating the old. They taught the many a little law, instead of starting a relatively few on the road to becoming expert professional lawyers. The relatively great increase in the attendance at law schools, as com- pared with that at medical and theological schools, is the result of all three of these special causes.' 1 In measuring the growth of law school attendance, by itself, allowance must also be made for the effect of the lengthened course, which tends to Increase the number of students present at any one time in a school, irrespectlTe of any increase in the num- ber of individuals passing through it. This is a factor, however, which is present in the other branches of professional education also. For comparative purposes, the total at- tendance is more significant than the number of graduates (the only other measure available in published statistics) because of its bearing upon the financial aspects of the institutional mechanism. Owing to the large number of students who attend a law school for only a short time, neither basis provides an accurate measure of the num- ber of individuals who secure their legal education in this manner. PART IV RISE OF A NEW LEGAL PROFESSION AFTER THE CIVIL WAR ORGANIZED IN BAR ASSOCIATIONS CHAPTER XIX SELECTIVE BAR ASSOCIATIONS THE creation and permanent establishment of university law schools has already been noted as the most important forward step taken by American legal education prior to the Civil War, and one which went far to offset the demoralization of the bar produced by lowered state requirements. Primitive, judged by modem standards, as were these ante-bellum schools, they represented a type of educational organization capable of infinitely greater development than the ap- prenticeship system of legal training that they replaced. The period as a whole was one of educational advance. From a political point of view, also, more can be said than to-day commonly is said in defense of the policy pursued by the states. To-day we can devote our energies to the task' of 'making democracy operate more efficiently, for the reason that the democratic principle itself is secure. The period before 1870, however, was the period during which American democracy, with no foreign model to guide it, was fighting its way into its own. It took the Civil War to prove that government could be strong and yet that the right of every man to participate in it could endure. Until then the failure of French democracy — to-day so magnificently retrieved — was a warning to our popular majorities that superabundant caution must be displayed. Every feature of governmen- tal administration that was not affirmatively democratic came under suspicion on this account. Of this sort were bar admission rules that tended not merely to qualify but also to exclude — whose apparent effect, if not whose deliberate intent, was to make law practice a social monopoly.^ The right of every man to participate in the making of his own laws is indeed a hollow mockery, if only strangers may participate in the administration and enforcement of these laws. Undemocratic re- strictions had to be abolished before extra-democratic regulations (if I may so term them) could be devised — regulations calculated not to 1 Story, writing in 1817, had referred to " that ascendency in society which distin- guishes the profession in this more than in any other country." Mhcellaneous Writ- ings, 1852, p. 76. For de Tocqueville's well-known characterization of the legal pro- fession in 1835 as "the American aristocracy," see Warren, History of the Amer- ican Bar, p. 512. Compare Harlan F. Stone, "During the early part of the 19th cen- tury the bar came nearer to constituting an exclusive privileged class in the new republic than any other group in the community." "The Lawyer and His Neigh- bors," 4 Cornell Law Quarterly (1919), 179. 204. RISE OF BAR ASSOCIATIONS undermine popular self-government, but to make this type of political organization, in its own interest, more efficient.^ So here, as in the civil service, the gates of privilege, when they would not open, were battered down, and the way was paved for future progress. In this second phase of legal education an important part was to be played by the new selective bar associations — city, state and national — that sprang into existence at this time. Organized for professional purposes in general, they early realized their responsibility for profes- sional training in particular. Almost without exception^ they at once established standing committees on legal education, including admis- sion to the bar. If the organization and accomplishment of these insti- tutions leave, even to the present day, much to be desired, we should recall how recent is their origin. In the case of the bar associations started after the Civil War, as in the case of the law schools started after the War of 1812, it jras a great thing for the profession that a new type of institution should be planted thi'oughout the land. In neither case could it be expected to spring full-blown into perfection. The significance of the new bar association movement lay in the fact that it marked the failure of the old attempt to combine into an in- clusive professional organization all lawyers practicing at the bar. The attempt was now made to revive the professional ideal through an or- ganization comprising only a minority of lawyers. The ultimate form which this new professional organization is to assume is still far from having been settled. Three problems in particu- lar have given trouble from the start — the relation, namely, between these new associations and the entire body of lawyers — the relation between the local and the national elements of the new composite or- ganization — the relation, finally, between this practitioners' organ- ization and the schools. These problems are still such strictly contem- poraneous subjects of discussion that it will be worth while to trace in some detail the early history of the associations. ^ One of the ways in which the backwardness of political science, as compared with either ethics or law proper, is displayed, is that it has not coined a word to denote measures that accept the fundamental postulates of democracy and yet in themselves are neither democratic nor undemocratic. Moralists have learned to distinguish be- tween "immoral" and "unmoral" or "amoral;" legalists between "illegal" and " extra-legal," "unconstitutional " and "extra-constitutional;" politicians have usu- ally been too embittered controversialists to stop to devise an appropriate terminol- ogy- 2 For the peculiar situation in Boston, see below, page 235. LOCAL AND STATE ASSOCIATIONS 205 1. Local and State Bar Associations Law dubs composed of selected members of the bar, meeting for pur- poses of social intercourse or mutual improvement, have, of course, existed from the earliest times.^ Associations existing for the special purpose of maintaining a library were formed in Philadelphia in 1802, and in Boston (the Social Law Library, still operating under its origi- nal name) in 1804. As early as 1778, Thomas Jefferson entered into an association to maintain fees at the level permitted by statute.^ Socie- ties having one or more of these aims became common, and are some- times difficult to distinguish from the associations of the entire mem- bership of the local bar which dominated New England legal education for a time and still constitute a recognized part of the Connecticut admission system. Associations of students preparing for the bar ex- isted in Philadelphia at an early date, and led up to Peter S. Du Pon- ceau's Law Academy, designed at its opening in 1821 to be a "national law school" both for students in law offices and for younger members of the bar — an avowed competitor with Harvard, in a city more ac- cessible than Cambridge to the country at large. In 1832, however, the field of legal education was definitely abandoned to the local univer- sity, and the Academy was reorganized as a moot court society in which form it stiU survives.^ Other important institutions surviving from before the Civil War are the Law Association of Philadelphia, a merger in 1827 of the old Library Company with a younger society formed for disciplinary purposes ; *■ the New York Law Institute, formally organized under Kent as president in 1828;^ and the New Orleans Law Associ- 1 For an early New York Bar Association (about 1747-70), the Massachusetts "So- dality " (1765) and the New York " Moot" (1770-75), see Warren, History of the American Bar, pp. 201-203; and as to the organization first named, compare Report of the Bar Association of the City of New York, 1871, p. 12. 2 Writings, ed. P. L. Ford, I, 416. * Sharswood, George, The Origin, History and Objects of the Law Academy of Phila- delphia, 1883. Klingelsmith, Margaret, op. cit., p. 219. See Appendix, page 432. 4 "The Associated Members of the Bar of Philadelphia practicing in the Supreme Court of Pennsylvania," organized 1821. In 1830 arrangements were made by which Academy students were privileged to use the Law Association Library. Mitchell, J. T. , Law Association of Philadelphia Centennial Addresses, 1903, pp. 13-78. * The Institute was incorporated in 18.S0 "for literary purjjoses, the cultivation of legal science, the advancement of jurisprudence, the providing of a seminary of learning in the law, and the formation of a law library ; " and even before incorpora- tion, efforts were made to deliver lectures. In 1835 a separate moot court and lecture society was organized, which, as in Philadelphia, used the other's library. Patterson, Edward, Sketch of the N. T. Law Institute, (1874); Kent, James, Address delivered before the Law Association of the City of New York, October Bl, 1836. See page 431. 206 RISE OF BAR ASSOCIATIONS ation, founded in 1847, merged in 1898 into the present Louisiana Bar Association. Traces have also been found of an early Mississippi Bar Association (1824 or before) and a Massachusetts Bar Association (1849).^ None of these .old institutions exhibited much vigor, however, until after the Civil War a younger generation infused into them a new spirit. Like the law schools, they had been soon overwhelmed by the multiplication of law reports. However broad their charter powers, the maintenance of libraries had come to be their principal function. The impulse behind the new organization of the profession was pri- marily ethical. The corruption in national, state and local politics after the Civil War was almost beyond belief. These were the years of Credit Mobilier, carpet-baggery and Tweed. That lawyers and judges contrib- uted their full share to the low tone of public life was early recognized.^ While the public at large aimed to clean up political life as a whole — organizing citizens' committees and associations of various sorts, and in such matters as civil service reform even getting down to what may fairly be called educational details — the lead in reforming lawyers was assumed by lawyers themselves. A special sense of professional respon- sibility was aroused among the more respectable practitioners of the day. To regain their lost leadership in public life, selected groups came together "to maintain the honor and dignity of the profession" as their primary object,^ and incidental to this, to do whatever needed to be done. Educational reform, as already stated, was seen to be among the problems demanding attention. New York City began this new bar as- sociation movement in 1870, quickly followed by Cincinnati, Cleve- land, St. Louis and Chicago. In 1873 the first of the new State Bar As- sociations was formed in New Hampshire, in 1875 the first permanent one in Connecticut. By the summer of 1878 eight city and eight state associations had been started in twelve states, all closely modeled upon the Bar Association of the City of New York, though of course not all equally successful.* The greater practical difficulties that confront the 1 Small, A. J., "Historical Sketch," Proceedings of the Iowa State Bar Association, 1874-1881, 1912, p. 9. 2 See above, page 90. 3 Beginning with the Association of the Bar of the City of New York, this is the first object stated in nearly all the earlier constitutions. « New York City 1870 Nashville 1875 New York State 1876 Cincinnati 1872 Boston 1877 Illinois 1877 Cleveland 1873 New Hampshire 1873 Maine, by 1877 St. Louis 1874 Iowa 1874 Nebraska, by 1877 Chicago 1874 Connecticut 1875 Wisconsin 1878 Memphis 1875 THE AMERICAN BAR ASSOCIATION 207 organizers of state as compared with city associations led to a less rig- orous scrutiny of qualifications for membership in the state associations, especially in the West. Thus the Iowa and Wisconsin associations were organized in response to a call addressed to all the lawyers in the state, in place of the more common procedure of sending an invitation to a selected list. In all cases, however, the selective principle was applied to future admissions, in provisions requiring the assent of members al- ready enrolled. Thus arose the modern system of a self-constituted, self-perpetuat- ing legal profession organized within the body of lawyers as a whole. The quasi-corporate control once possessed by the lawyers over admis- sion to the entire bar had passed away.^ In its place arose control over admission to bar associations.^ It was an act of considerable daring to take a step which, outwardly, was not in harmony with democratic doc- trines as currently understood. The New York City association was on the defensive in this respect from the beginning.* 2. Formation and Early Struggles of the American Bar Association Meanwhile the American Social Science Association had been organ- ized. This rather typical product of New England reformatory zeal served a useful purpose as a national clearing house for a great variety of projects. Possessing a roving commission to suggest improvements in every department of public life, it conscientiously carried this bur- den until it was bit by bit relieved. The personal contacts established at its annual meetings facilitated the formation of national associa- tions of narrower scope. It contributed in this way to the birth of such highly dissimilar organizations as, for instance, the National Civil Ser- vice Reform Association and the American Bar Association. At its 1 "When its members were fewer, and a longer probation was required for adntis- sion to its ranks, the traditions of the profession served, to some extent, to answer the purpose of a corporate organization. But since 1846 . . . the barriers to admis- sion to the Bar have been substantially removed ; the distinctions between attorney, solicitor and counsellor have been ohVAerateA," Bar Association of the City of New York, Constitution and Address, 1870. ^"I think I can express the idea of this association, and, the purpose for which it is to be formed, by saying that we shall aim to make ourselves once more a •profession." The itahcs are those of James Emmott, in Report of Proceedings of the Bar Associa- tion of New York, 1871, p. 17. 3 See its labored apology to the city bar for having organized itself without consult- ing the whole body of the profession. Bar Association of the City of New York, Con- stitution and Add/ress, 1870. 208 RISE OF BAR ASSOCIATIONS Saratoga meetings in 1876 and 1877 the programme included a "Sec- tional Department of Jurisprudence" at which papers were read by lawyers from several states, in some of which bar associations, old or new, already existed. Several of these gentlemen were subsequently prominent in the organization and early activities of the American Bar Association. In the records of this latter body no credit is given to the earlier reform organization, from whose general spirit the law- yers seemed anxious to disassociate themselves. That we have here, however, a link in the general movement for building up a professional organization of the bar cannot be doubted.^ The Connecticut Bar Association suggested the formation of a na- tional bar association in January, 1878. The actual call for its organ- ization, however, as issued in July, represented only the individual authority of fourteen lawyers, from twelve states.^ In response to this invitation seventy-five gentlemen from twenty-one jurisdictions, out of approximately 60,000 lawyers then practicing in the United States, assembled the following month at Saratoga. Care was taken that un- invited guests should not participate in the organization. A constitu- tion was adopted which added to the three stated objects of the New York City association (upholding the honor of the profession, encour- agement of coi-dial intercourse, promotion of the administration of jus- tice) two further ones: Advancement of the science of jurisprudence^ and promotion of uniform legislation throughout the Union. The fol- lowing year saw a total membership of over five hundred, but for some time thereafter the growth of the Association, except as regards the number of jurisdictions represented, was slow. It began the second de- cade of its existence in 1888 with only seven hundred and fifty mem- bers (of whom less than a sixth attended its meeting), and with a re- cord of very slight accomplishment in its chosen field. Even " cordial 1 Since this section was written, a detailed account of the organization of the Ameri- can Bar Association by the leading spirit In the movement, Hon. Simeon E. Bald- win, then head of the Yale law school, has been printed in 3 American Bar Associa- tion Journal (1917), 658. This gives full credit to the American Social Science Asso- ciation. * These twelve states included the two (New York and Illinois) in which both city and state associations already existed ; three of the four in which only city associa- tions had been recently organized (Massachusetts, Ohio, Missouri) ; one of the six in which only state associations had been organized (Connecticut) ; six states hitherto unaffected by the modern impulse toward organization (Vermont, Pennsylvania, Virginia, Kentucky, Georgia, Louisiana). ' Several of the city or state associations, beginning with the St. Louis Bar Associa- tion, 1874, had already made a similar addition to the New York City formula. THE AMERICAN BAR ASSOCIATION 209 intercourse" — that last justification of so many apparently futile bar associations at the present day — had not always characterized its sessions. The trouble was due in part to the fight over codification that was waged with great bitterness at its meetings of 1885 and 1886, and in part to the manner in which the Association was organized. Although its constitution provided that the President should be changed annu- silly, he was not made a member of the Executive Committee. No pro- vision was made for injecting new blood into this body, on which neces- sarily fell the burden of managing and practically controlling a geo- graphically scattered membership. There were virtually no changes during the decade in the permanent organization, including chair- manships of other standing committees, and — as frequently occurs when would-be leaders do not receive the recognition they think they deserve — this gave rise to charges of ring rule within the Associa- tion. Furthermore, the relation between this body and the local bar asso- ciations had given trouble from the start. In the medical profession this difficulty had been obviated by the federative form of organization adopted at the beginning. The precise steps in the building up of this or- ganization were as follows : In 1806 the New York legislature had cre- ated a State Medical Society, composed of delegates from each county medical society then in existence or to be subsequently organized. Two years later this society voted to admit the local medical school (the New York College of Physicians and Surgeons) to membership on an equal footing with county societies. In 1839 the state society had as- sumed the initiative in building up a national society by this same de- vice of integrating local units into a greater whole, and in 1847 the American Medical Association was finally organized on this basis by two hundred and fifty physicians not representing themselves, but ap- pearing as delegates of over forty medical societies and twenty-eight medical colleges. The permanent organization, formed on the same lines, was not only pleasingly symmetrical; after certain changes, not affect- ing its relation to the state societies, had been made, it became also admirably efficient in operation. Any differences of opinion between so- ciety and society have from the beginning been settled within the pro- fession itself, which thus speaks to the outside world with united author- ity. When, in 1875, the New York City Bar Association issued its call for the formation of a State Bar Association, the question was discussed 210 RISE OF BAR ASSOCIATIONS whether the example of the medical profession should not be followed. The fact that no other local association of importance existed, however, coupled with the desire of individuals to secure special professional rec- ognition, made this course impracticable. The New York State Bar As- sociation was accordingly organized independently by an invited group. It seemed even more clearly impracticable to organize a national asso- ciation out of units most of which did not exist. Furthermore, such an organization would have savored too much of states rights to suit the dominant political theories of the day. A "national" bar, as independ- ent of state bars as the recently triumphant national government was independent of the states, was undoubtedly what the leading lawyers of the North had in mind. Similar considerations help to explain the unsympathetic attitude of the American Bar Association toward state bar associations, even at the present day. Those who cnticize its organ- ization on the ground that it divides the forces of the profession should recall the stimulus toward disunion that is produced by our dual sys- tem of government. The professional mechanism of lawyers is inevitably influenced by the divisions of our governmental structure to a much greater extent than is that of physicians. One concession to fraternal feeling the American Bar Association did make. Its first by-laws, adopted in 1879, provided that any state asso- ciation might send to each annual meeting three delegates with full privileges of membership for the occasion ; and the following year any city or county association, where no state association existed, might send two delegates. In spite of the rapid gi-owth of such associations, however, few availed themselves of this privilege, and such delegates as did attend were quite submerged in the mass of regular members. Thus at the important 1886 meeting, only one outside association — the Bos- ton Bar Association — was represented, and of its two delegates one was already a member of the American Bar Association and the other was promptly elected. To the extent that the arrangement possessed any value at all, it tended to enhance rather than to undermine the author- ity of the permanent members. The Association so closely resembled, in short, a self-perpetuating clique, and there was so little in its recortl to justify a claim to leadership of the American bar, that in 1887 there- was launched a rival organization — the National Bar Association — built on representative lines. TTie Bar Association of the District of Co- lumbia issued the call. Eight state, eight county, and fourteen city as- sociations, from eighteen jurisdictions in all, took part, through their THE AMERICAN BAR ASSOCIATION 211 delegates, in the convention at which the Association was formally or- ganized the following spring.^ James A. Broadhead of Missouri, who had been the first president of the American Bar Association, was elected President,and the first annual meeting was held at Cleveland in August of the same year. A few weeks later, at the American Bar Association's meeting at Saratoga, Broadhead asserted that his organization already represented 2000 out of the 10,000 lawyers whom he estimated to be enrolled by this time in local associations. Although he disclaimed any rivalry with the older body, it looked for a moment as though the his- tory of partisan political organization was about to be duplicated in that of the lawyers' machine — as though an association composed, like the extinct Federalist party, of individuals, might succumb to one based, like Jefferson's Republican party, and like both the national par- ties to-day, upon local units. The Executive Committee was plainly concerned over the outlook. In 1887 it inaugurated the policy of printing in the Annual Report a List of local associations. In 1888 it was ostentatiously cordial to such delegates as appeared. It even recommended a change in the by- laws whereby any city or county association might be permitted to send two delegates, whether or no a state association existed. The Associ- ation as a whole, however, stood finn. Encouraged by a change in the constitution, which ensured a constant infusion of new blood into the Executive Committee by adding the outgoing and incoming Presidents of each year, it decliqed to extend the representative principle, and undertook instead a more aggressive campaign for membership on the original lines. In 1889 it held its annual meeting for the first time away from Saratoga — in Chicago — where 279 new members were secured, yielding a net gain in membership of 210, as against a net gain of pre- cisely one the year previously. At the same time Broadhead abandoned the National Association, which soon collapsed.^ Its failure may be as- 1 Of the eighteen jurisdictions represented, nine were southern and five western. In addition four state, two county and two city associations, from six additional jurisdic- tions, electfed or agreed to elect delegates who did not attend, yielding a nominal total of thirty-eight associations interested. 2 At none of its annual meetings, held at Cleveland, White Sulphur and Indianapo- lis, were as many associations represented as at the original convention in Washing- ton. It disappears from the pages of recorded history at a banquet held in 1891 at Washington, where the g^uests were regaled with the dream that Congress might ap- propriate funds for a building. National Bar Aaaociation of the United States, PreUminwry Statement, 1888: Pro- oeecKnffS, 1888, 1889, 1890. See also Miscellaneous Pamphlets in N. Y. Bar Associa- tion library. 212 RISE OF BAR ASSOCIATIONS cribed to two general causes. First, the difficulty of securing financial support from its constituent members when no definite objective was in sight; second, the heterogeneous character of the local organizations. The powerful New York and Boston Bar Associations had turned a cold shoulder to the project from the start. They were quite as exclu- sive in their spirit as was the American Bar Association. In spite of some friction with this latter over its endorsement of codification^ they stood by it, in preference to western or southern bodies with which they had little in common. 3. Principal Elements of Weakness in the Bar Association Movement By 1890, accordingly, the professional organization of American law- yers, although not yet extended over the entire country, had become definitely set in the lines of disunion that characterize it to-day. There were to be three tiers of associations. The highest tier in point of dig- nity and influence through the country at large was to be occupied by the American Bar Association, which already contained members from forty-two of the forty-nine state or territorial jurisdictions into which the continental area of the United States, exclusive of Alaska, was di- vided. Representation of every state in the Union dates from 1904, when a member was admitted from Nevada. The second tier was to consist of state or territorial associations, of which there were by this time twenty-eight. Wyoming in 1915 completed the full number, excepting only Delaware. The third tier, finally, was to consist of city or county associations of many sorts. It has been reckoned that in 1890 there were 159 of these, in thirty-six jurisdictions, and that in 1916 the number had grown to 623, in forty-one jurisdictions.^ The progress of the pro- fession toward its now virtually completed triplicate organization in every state may be exhibited as follows: 1 Compare the following defiance hurled at the American Bar Association by one of its own members : "Those of us in New York who have been in this controversy do not need the interference or the aid of this Association, and I do not think the bar of New York comes here to ask it, and we have nothing to do therefore with it " Austen G. Fox, 9 Rep. Am. Bar Ass. (1886) 60. 2 No city or county organization in 1916, so far as reported, in Louisiana, Nevada, New Mexico, North Carolina, Oklahoma, South Carolina, Utah, Vermont. 1 23 30 39 40 24 22 16 10 9 22 4 3 47 49 49 49 49 ELEMENTS OF WEAKNESS 213 Progressive Organization of the Profession into National and State and Local Associations 1878 1890 1900 1910 1916 Jurisdictions represented in A. B. A. 31 42 45 49 49 Jurisdictions maintaining state associations 8 28 40 46 48 Jurisdictions maintaining local associations 6 36 35 40 41 Total number of bar associations IT 188 298 553 672 Jurisdictions represented in all three types of asso- ciations Jurisdictions represented in one or two types only Jurisdictions not represented in any association Total number of jurisdictions The later figures, it should be distinctly understood, exaggerate the number of selective bar associations that now exist. They include mori- bund organizations, library companies and non-selective county asso- ciations.^ Among selective associations, also, the figures inevitably in- clude organizations of every degree of importance, from the magnifi- cently housed Bar Association of the City of New York down to per- functory collections of periodical banqueters. It would be a hopeless 1 They have been compiled from the List of Bar Associations published annually in the Reports of the American Bar Association, 1887-1911 ; the List of State Bar Asso- ciations which has succeeded this since 1912; and the 1916 Report of the Committee on Professional Ethics (2 Am. Bar Ass. Journal, 563). The Delaware State Bar Asso- ciation, which held no meetings subsequent to its organization in 1901, is omitted. The Bar Association of the District of Columbia is classified as a state association. Several of the local associations carried on these lists, notably in Pennsylvania, are of great antiquity, but are excluded from the 1878 column, for the reason that such activity as they have since displayed seems attributable to the country-wide impulse proceeding from the group of reform associations founded during the seventies. The adoption of a new charter by the Law Association of Philadelphia in 1880 may be taken to mark the transition. It has been stated that in 1920 there were over 900 local bar associations. As indicating the difficulty of distinguishing live from dead associations it may be pointed out that from 1901 to 1914, inclusive, an attempt was made to publish in the Reports of the American Bar Association a Summary of Proceedings of State Bar As- sociations. Between 1911 and 1914, 49 of these associations, including those of Dela- ware and of the District of Columbia, were listed. The number that reported at any time during these four years, however, was 44 (no reports from Arizona, Delaware, Louisiana, New Hampshire, Wyoming). The highest number that reported in any one of these four years was 35 (in 1911). The number that reported in 1912 was 20. The number that reported during each of the four years was only 11 (Illinois, Iowa, Kansas, Maryland, Massachusetts, Michigan, Mississippi, New Jersey, New York, Ohio, Utah). 214 RISE OF BAR ASSOCIATIONS task to attempt to catalogue, with any precision, the associations that deserve to be taken seriously. Many of them exert no influence; the more active exert far less influence than they should. Among the many explanations which may be given for this generally recognized fact, the most important one, it is believed, is one that these figures, after all allowance is made for exaggeration, clearly reveal. The impulse toward professional organization has overreached itself, and has given us entirely too many mutually independent and competing associa- tions. The diffusion of professional responsibilities among national, state and local organs has made it no one's especial business to initi- ate a needed reform. It has made it every one's business to point out defects in such constructive proposals as occasionally are made. The associated lawyers, having no single recognized mouthpiece, would set up a discordant clamor if they really raised their voice. This is one of the reasons why, so often — let it be said without offense — ^they emit only a gentle buzz, made up in large part of platitudinous gen- eralities. Efforts to promote cooperation among the diffierent elements of this composite group have been made, but do not reach the root of the evil. The original device of admitting to the regular meetings of the Amer- ican Bar Association delegates from state associations, or from local associations when no state association existed, proved entirely ineffec- tive,^ and was abandoned in 1919. In 1916 the plan was accordingly adopted of convening delegates fi'om state and local associations in general, in a special Conference prior to the regular meeting. Whether this innovation will produce any lasting effect other than that of plac- ing still another item upon the Association's already congested annual ^ Comparative Attendance of Delegates from State and Local Associations State associations entitled to representation State associations represented at meeting Additional jurisdictions entitled to representation through existing local associations Jurisdictions thus represented The number sending delegates at anytime during the four years 1911-14 was 44 (no delegates from Delaware, Florida, New Hampshire, Utah, Wyoming). The number sending delegates in 1914 was 34; in 1912, 21; regularly during each of these four years, 10 (Alabama, Colorado, Mississippi, Missouri, New York, North Carolina, Oklahoma, Pennsylvania, South Dakota, Wisconsin) ; regularly during each of the six years, 1911-16, only 5 (Colorado, Mississippi, Missouri, North Carolina, Pennsyl- vania). Compare preceding note as to associations that regularly reported their pro- ceedings. 1890 WOO 1910 1916 28 40 46 48 9 24 28 32 13 6 1 1 3 3 ELEMENTS OF WEAKNESS 215 programme cannot, at present, with any confidence be foretold.* The Association refused to adopt the recommendation of the first Confer- ence that hereafter every applicant for membership, if not for twenty years a member of the bar, must be a member of a recognized state bar association. In place of this step toward a genuine integration of the profession, state bar association presidents were made ex officio members of the standing committee on nominations for office, and state bar association secretaries were added to the membership com- mittees for each state. In 1919 even these provisions were dropped. In its relation to other bar associations the national organization remains, therefore, OT\\.y prinvus inter pares. No more at present than in the past can it speak with the authority that would belong to an organization that represented the entire group of selective associations. This, then, is the first and most important characteristic of the newly organized legal profession that has grown up since the Civil War, and the characteristic that especially distinguishes it from the older medical organization — the fact that it is a loose conglomerate rather than an integration of local, state and national units. Out of the wreck- age of attorneys admitted to the bar, under the liberal admission rules prevailing in all the states, something resembling a genuine legal profession, based upon the selective principle, has indeed emerged. But it is a profession so disunited within itself as seriously to impair its capacity even to formulate — let alone to realize — professional ideals. A second continuing characteristic of the new profession has been the small proportion of practitioners that belong to it. As late as 1910 the American Bar Association included only three per cent of the total number of lawyers in the United States, as compared with over twenty per cent of physicians then paying dues to the American Medical Association. Since then there has been a great increase, due largely to the efforts of a new membership committee appointed in 1912 and supported by liberal appropriations. Yet even to-day the membership is only about nine per cent of the total number of lawyers. 1 More than 200 delegates, representing 45 states and 76 local bar associations, were expected at the first conference. The actual attendance at each successive confer- ence, omitting delegates representing outlying possessions, Canada and the Ameri- can Bar Association itself, has been as follows : 1916 1917 1913 1919 1930 State bar associations represented 32 86 29 40 35 City or county bar associations represented 19 30 43 44 32 Total number of delegates 71 116 112 134 94 216 RISE OF BAR ASSOCIATIONS Table Showing Growth of American Bar Association 1880 1890 1900 1910 1920 Number of lawyers in the United States 64,137 89,630 114,460 123,149 130,0001 Members of American Bar Association 552 943 1,540 3,690 11,9412 Per cent 0.9 1.1 1.S 3.0 9.S The aggregate membership of all State Bar Associations has recently been reckoned as about 25,000, or 20 per cent of the total number of lawyers.' The policies and functions of local associations vary so greatly that it is impossible to quote aggregate figures for these.* Allowing for duplications, between 25 per cent and 30 per cent would be a reason- able estimate of the proportion of lawyers now enrolled in any part of the entire three-storied structure of selective associations. If this feature of the bar association movement were the outcome of a defensible principle of selection, consistently applied — if it were con- sequently recognized as a merit rather than as a defect that a care- fully chosen minority of high class lawyers should be distinguished from the entire body of attorneys admitted to the bar — if, having been thus set apart in professional organizations of their own, this minority thereupon scrupulously discharged the responsibilities proper to their position, and never, on the one hand, immersed themselves entirely in their private practice, nor, on the other hand, arrogated to themselves authority justified neither by the basis of their selection nor by their numerical importance — then there would be nothing out of the way in the figures quoted. When lawyers are contrasted unfavorably with physicians as regards the relative strength of their professional organ- ^ Estimated. U. S. Census figures, used in the absence of more reliable authorities for preceding years, have not been published for 1920. At the annual meeting the total number of lawyers, listed by jurisdictions, was stated by a member to be 127,088, of whom 11,294, or 8.9 per cent, were, at the time the list was compiled, members of the Association. 43 Rep. Am. Bar Ass. (1920) 26. 2 In 1916, 10,636. 5 1 Am. Bar Ass. Journal (October, 1915), 566. This figure compared with nearly 80,000 physicians, or approximately 50 per cent of the total number, members of State Medical Associations. All members of State Medical Associations are techni- cally members also of the American Medical Association, and over half now pay dues to it. See below, page 233, note. * The call for the organization of the original New York City Bar Association was signed by 231 out of approximately 4fl00 city lawyers. The membership numbered in 1873, 600 (15 per cent); in 1910, 2056 (29 per cent of the number in the old city, 19 per cent of the number in Greater New York) ; in 1930, 2333. ELEMENTS OF WEAKNESS 217 izations, it is forgotten that the medical craft includes much more than the physicians and surgeons now so largely represented in the Ameri- can Medical Association. It includes also pharmacists, nurses, mid wives, to say nothing of the specialized practice of dentists and veterinaries. The long process of historical development whereby the original apoth- ecary and the original barber were transformed into the many branches of the healing and surgical arts that now exist, is only beginning in the case of the American attorney and counsellor-at-law. It is inevit- ably attended by the setting off of the specially trained, or the better trained, or both, into minority associations. Unfortunately, the significance of the process has not always been clearly understood either by those without or by those within the bar associations. To non-members, the animating spirit of a membership committee has sometimes seemed to be one of narrow exclusiveness, based upon considerations of caste or wealth or age or race; while as for the associations themselves, doubtless some have really allowed such considerations to influence their policy. Others have not been at suffi- cient pains to dispel an impression of favoritism that is easily produced, when the fate of applicants is determined by a star chamber. Still oth- ers, restive under this imputation, or over-anxious for mere numerical growth, have not adopted the remedy of enunciating rigorous objective standards of membership under which applicants may qualify. Instead, like many colleges and law schools, they have let their entrance barriers down. They have organized campaigns to drag in all the new members they can find. Like the colleges and the law schools, they have honestly thought it "democratic" to prefer quantity to quality. While the mechanism of formal election to membership has been retained, the actual standard of admission has been debased to little more than will- ingness to pay the dues of the association. When election is easy, and accomplishment small, the busy and successful practitioner may well question whether it is either a personal advantage or a public duty to join, or whether he would not thereby be merely playing into the hands of the schemers for petty notoriety who inevitably play a considerable part in aU pi-ofessional organizations. In short, if the membership policy of a bar association does not cause an excluded applicant to feel re- sentment at not being considered "good enough" to belong, the non- member is likely to feel that the association is not "good enough" to belong to; or if, as the result of a vigorous campaign, he is induced to 218 RISE OF BAR ASSOCIATIONS lend his name and pay his dues, he still will not waste his valuable time by taking part in its activities.' Thus as a result of the imperfect application, or even the virtual surrender, of the selective principle, the newly organized profession ranges in its membership all the way from groups that are suspected of undemocratic exclusiveness down to aggregations that cannot be distinguished, to their advantage, from the mass of attorneys whom they profess to illuminate and lead. Not being able to justify their claim to leadership on the sure gi'ound of superior training, their occa- sional recommendations — even when not mutually conflicting — lack the weight which a proper insistence upon educational qualifications in their own membership would supply. Put forward as the authoritative judgment of the profession, they are rightly regarded by our law- makers merely as suggestions emanating from small and not remarkably important groups of practitioners. A final general characteristic of these associations has been their lack of organic connection with the schools — unless we count as organic connection the custom, inaugurated by the Nevr York City association in 1871, of choosing heads of prominent law schools (in this instance Dwight of Columbia) as chairmen of their committees on legal educa- tion. The story of how, many years later, as part of the elaboration of the American Bar Association's activities, efforts were made to estab- lish a better connection, and how the attempt resulted only in widening the gap between the organized practitioners and an important group of schoolmen, organized in the Association of American Law Schools, is too much a story of contemporary detail to be discussed in the present Bulletin. It need here only be pointed out that the original failure to adopt the delegate form of organization made it impossible to give to law schools the same sort of representation that the Medi- cal Association had accorded to medical schools; and that the organic hiatus has been the more unfortunate for the reason that, on the side of personnel, the accepted identity between the medical school graduate (the M.D.) and the educated physician was in no wise duplicated in the early legal profession. The leaders of the medical profession were ^ The attendance at the annual meetings of the American Bar Association in 1880 was 17 per cent of the total membership; in 1890,14 per cent; in 1900, 15 per cent; in 1910, 9 per cent; in 1919, 8 per cent. The highest percentage of attendance since 1910 was at the Boston meeting of 1911 and the Montreal meeting of 1913: 13 per cent. At meetings of the New York City Bar Association an attendance as high as 1 S per cent is considered remarkable. ELEMENTS OF WEAKNESS 219 themselves schoolmen. The leaders of the early legal profession in the majority of instances were not."^ Although since then law school edu- cation, as a preparation for practice, has become usual, it still is far from possessing the sanction that the medical school enjoys, in the way of either popular, or legal, or professional recognition. The public re- gards the LL.B. as only an empty academic distinction. No state re- quires law school training for admission to its legally privileged bar. No bar association, finally, imposes any such qualification upon those admitted to its own inner professional circle. Notably in this last re- spect the law school stands at least a generation behind the medical school. The legal profession, as organized in bar associations, has not yet come to the point of insisting that training in any sort of law school must be secured, at a time when the medical profession has pro- gressed far beyond this stage, and is energetically distinguishing be- tween good and bad schools of medicine. Now, there can be little question but that the recent rank growth of law schools needs to be weeded out by the profession, through action similar in some ways to that which has already been taken in the medi- cal field.^ But practitioners, themselves the product of every variety of institutional training, or of none, cannot easily agree which are the schools that produce valuable crops and which are the tares. Let one illustration suffice. In so far as a prevailing opinion as to the distinc- tion between good and bad education may be said to exist, practition- ers naturally tend to emphasize the importance of practical training. They are predisposed to stigmatize as theorists those law teachers who are not in active practice, or who do not attempt to conduct ambitious " practice" work; or if they recognize that adequate practical training cannot be given within academic walls, they are apt to feel that the education that can be given there should be supplemented by ade- quate practical training elsewhere. They come thus into confiict with a group of scholars who feel that in the law, as it is actually adminis- tered by present-day practitioners and judges, technique counts for vastly more than it should. Such men have made it their mission not to perpetuate this evil by increasing the ranks of the mere technicians, but to remedy it by sending out graduates with a broader conception of the 1 Of the dozen presidents elected by the American Bar Association prior to 1890, only three had a law school training. Many present-day practitioners and judges have attained professional distinction without this advantage. * See above, page 193. ' 220 RISE OF BAR ASSOCIATIONS law. They are jealous of any attempt to preempt the student's time with matters that they deem of subordinate importance. Discussion between this group of teachers and general practitioners, as to the precise objects for which additional time is needed, prevents the student from devoting sufficient time to any part of his education.' It may be that each party underestimates the merit of the other's position. It may be that neither sees with sufficient clearness the neces- sity of diversification of crops in the law school field — of cultivating, by methods appropriate to each, both wheat and oats, rather than simply grain in general. Each may too hastily have taken it for granted that there must be a substantial identity of purpose and of structure among all law schools worthy of the name. Evidence of superiority or of infe- riority is seen in what may be the marks of generic difference only. Con- siderations such as these are particularly applicable to the vexed ques- tion of night law schools. Whatever may be the correct attitude as to this and as to other problems that profoundly affect the law schools, and therefore our entire system of legal education and admission to the bar, it is certain that these matters cannot be settled by associations whose authority to settle them is not recognized by the law schools themselves. For although the schools, in the aggregate, constitute as much of a hodge-podge as the existing membership of bar associa- tions does, individually they are often more firmly established and enjoy greater prestige, both with the public and with influential prac- titioners. The establishment, accordingly, of organized bodies of practitioners, independent of the already existing organization of law teachers in their several schools, has brought it about that legal education must now reckon with two types of institutional forces whose points of view inevitably diverge. Since no means of reconciling these two forces has yet been discovered, a confusion of counsel (or, more commonly, a pru- dent withholding of counsel) leaves those responsible for the improve- ment of legal education uncertain what they ought to do. Individual schools and bar associations, bar examiners, courts, legislatures, and the public at large, all hesitate to act, for lack of a central organization competent to thresh out the many disputable points involved in the formulation of a consistent programme. ^ So, quite recently, the extension of the period of training to four years, generally recognized as desirable both by practitioners and by schoolmen, has been delayed by disagreement as to whether the fourth year had best be spent in an office or in a law school. VALUE OF THE NEW PROFESSION 221 4. Valuable Services rendered by the New Profession Still other organic weaknesses in the new profession made their influ- ence felt at a later date.^ The three defects already mentioned, how- ever — the division of the profession, namely, into mutually inde- pendent groups — the absence of any clearly defensible basis for the claim of these small minorities to represent or to lead the practition- ers outside — the lack of satisfactory contact between the associated practitioners and the teachers organized in their schools — have been continuously operating and are so glaring that they raise the question by what warrant we term this loose conglomerate "a" professional or- ganization at all. Have we not here merely a miscellaneous collection of self-constituted groups, all more or less at odds with one another and with the practitioners and schools outside? Our justification for seeing in it more than this is that, as events were to prove, the spirit of comity among lawyers did, after all, provide a bond and a sanction. There was really a vague unity about the system and a shadowy au- thority about its decrees. The group of selective bar associations has come, as a matter of fact, to constitute "a" professional organization, though a shockingly inefficient one. In spite of the fact that its essential characteristics of separatism and arbitrary membership standards have never been changed, it has given to an otherwise disorganized mass of practitioners the only leadership they possess — one whose commands are at least listened to, even if they are not always followed. It is true that the American Bar Association often expresses itself as favoring a cer- tain reform, and then nothing occurs. It is true that a state bar associa- tion often recommends a definite legislative measure, and the legislature treats the recommendation with scant respect. But, on the other hand, it is also true that a state association rarely if ever opposes a policy on which the American Association has taken a decided stand. It is true that in the particular field of legal education, as a preliminary to any action by the legislature or by courts, it has come more and more to be part of the normal process of reform that the endorsement of a bar association must first be secured. One has only to note the sequence of bar association agitation and of improved standards of bar admission, in almost any state since the Civil War, in order to appreciate both how dilatory and how indispensable is this now consecrated mode of procedure. 1 Notably an unfortunate division of responsibility, finally remedied in 1919, between the Committee on Legal Education and the Section of Legal Education of the American Bar Association. 222 RISE OF BAR ASSOCIATIONS A real force for betterment the new invention has accordingly proved to be ; one to be applauded for accomplishing something, rather than to be condemned for not doing more. In appraising its vi^ork, moreover, it is only fair to realize that the task of " maintaining the honor and dig- nity of the profession" — in plain English, making lawyers respected and respectable — is a large one, in which much besides education is in- volved. There are two lines of bar association activity, in particular, con- cerning which a word should be said, both because of their importance in diverting the attention of members from legal education and because they suggest a distinction — not yet sharply defined but already recog- nizable — between the functions appropriate to state and national asso- ciations on the one hand, and to purely local associations on the other. In the first place, among the responsibilities of the profession is that for the condition of the law itself. For some of the changes needed in order to reduce contradictory precedents and slovenly statutes into something resembling common sense, action by the schools must be awaited. But there is a good deal, especially in the field of procedure and removal of accidental variations in commercial law, that can and ought to be done at once to stir up courts and legislatures. To this task the associations have addressed themselves, and with fair success. There has been much discussion, and some accomplishment. The time that was thus spent, however, in the New York City association, for instance, in discussing the Code of Civil Procedure, or that was later spent in the American Bar Association in discussing codification in the abstract, necessarily delayed action in regard to other matters equally impor- tant in their way. In this department of their activities the associations are virtually legislative bodies for the bar, and, as in other legislatures, their calendars are crowded. This crowding is especially apt to occur in the case of state and national associations, which meet only once a year. For obvious reasons, however, it is here, rather than in local as- sociations, that reforms of state-wide interest are most appropriately pushed. Forums of discussion, therefore, wherein the opinion of the bar is slowly crystallized, is what such associations tend to become ; or, fail- ing this, "encouragement of cordial intercourse" among a geographi- cally scattered membership has a professional value that serious-minded souls should not despise."^ But what with banquet and debate, the 1 In the genial language of Attorney-General Harmon, a quarter of a century ago, the American Bar Association offers to the inadequately trained, "facihties, including eating, for further legal education." 19 Rep. Am. Bar Ass. (1896) 449. VALUE OF THE NEW PROFESSION 223 recommendations of the educational committee often receive scant attention. A second divergent line of bar association activity has been the efFoii; to restore, by other than educational means, ethical standards to the profession. Here, as in the case of law reform, the work of the bar as- sociations constitutes a necessary supplement to the work of the law schools. The activities of the schools are fundamentally the more im- portant. For although it is ofcourse true that morality among lawyers is more important than mere expertness or erudition, which may be combined with an utter absence of high ideals, it is equally true that a proper system of education is needed in order to secure either end. It is only through agencies that come in contact with prospective law- yers during their formative years that the character of lawyers can be profoundly affected, and a genuine moral sentiment diffused in the pro- fession. So frail is human nature, however, that the products even of the best system of education sometimes go astray. Complete reliance can- not be placed upon the inner worth of a practitioner as developed in the school. A check upon his conduct in actual practice is also required. This check is still more clearly indispensable when even his education has been defective. The building up of some system of external re- wards and punishments to accomplish this result is peculiarly the func- tion of the profession itself, an(? is not, like education, a responsibility that it shares with the law schools. Properly, therefore, though again somewhat at the expense of edu- cational progress, the bar associations have from the beginning devoted a considerable portion of their energies to this phase of the ethical problem. Their activities have assumed two main forms, usually ap- pearing together. In the first place, with reference to themselves, th©^- associations have been fairly careful not to admit to membership, or to retain in membership, the less worthy practitioners. They have tried to establish the tradition that inclusion among their members is in some degree a sign of merit worth a young man's while to deserve. In the second place, they have quite often taken it upon themselves to act as watchdogs and leaders of the lawyers outside. Through their griev- ance committees they have exposed and prosecuted the more heinous offenders, and have secured their disbarment by the courts.' They have 1 The Chicago and Boston bar associations recognized from the beginning their re- sponsibility to act as censors of non-members. The New York City association did not thus extend the jurisdiction of its Grievance Committee until 1884 ; the Illinois State Bar Association not until 1888; the New York State Bar Association not until 1918. 224 RISE OF BAR ASSOCIATIONS advocated legislation to aid them in purifying the profession. They have themselves promulgated codes of professional ethics.^ They have been charged sometimes with being a little too hard on the poor devils outside, and a little too lenient with sinners in the fold whose nefa- rious operations, especially in some of the insidious ramifications of corporate graft, have done far more to debauch the community. The charge is in some cases a mere expression of social jealousy, to which I shall have occasion in the next chapter to recur. Whether, in other CEises, it may be well founded does not fall within the province of an educa- tional enquiry to decide. The bar associations, if they have not done all that they might have done to elevate the moral standards of the lawyers, have at least done a good deal. They constitute one of the forces that have made our public life cleaner than it was when they started. Naturally, local associations have accomplished more in this field than state associations, both because it is in the large cities that the ethical problem is most acute, and because the evil is one that de- mands administrative investigation rather than legislative manifestos. When local associations are not active in this way, their ability to' maintain law libraries is what keeps them alive. In one or both of these ways they serve so creditably other professional needs that their fail- ure fully to utilize their opportunities in behalf of legal education, though unfortunate, is not surprising.^ 1 First in Alabama, in 1887. The American Bar Association adopted Canons of Ethics in 1908. Note also the activities of the Committee on Professional Ethics of the New York County Lawyers' Association, In systematically answering questions respecting proper professional conduct. 2 It is not forgotten that the maintenance of a good collection of law books is itself an important educational function. The debt which the present writer owes to the Association of the Bar of the City of New York for granting him access, at the re- quest of the Foundation, to its complete and admirably administered library is one that he can never sufficiently acknowledge. CHAPTER XX THE PROBLEM OF PROFESSIONAL ORGANIZATION WHEN all allowances are made, however, the accomplishment of our existing bar associations seems slight, for a period covering fifty years. Their records teem with evidences of earnest effort and with regrets that it has all been to little avail. The conclusion is gradually forcing itself upon the profession that there is something wrong with a machine, the operating efficiency of which is so low. The output of finished product is unduly small in proportion to the individual energy that is required to produce it. The concrete efforts that have been made to remedy this evil are too intertwined with strictly current contro- versy to be appropriately recounted here. Among the features of the present system of professional organization that have come up for dis- cussion, however, are those three that have been emphasized in the pre- ceding chapter as its principal defects. Although the particular way in which the profession shall be reorganized is properly a matter for the lawyers themselves to decide, so much of the future development of legal education depends upon having these three points settled right that some further discussion of the principles involved, from a view- point not affected by institutional pride, may be hazarded in the hope of bringing discordant elements together. 1 . The Basis of Professional Selection First, as to the delicate question of exclusiveness or inclusiveness ; the relation, that is to say, that should obtain between the profession, as organized in bar associations, and the entire body of practicing law- yers. The charge that is sometimes brought against some of these as- sociations, both by those without and those within the pale, is that, by avowedly aiming to include only a selected group of high-class law- yers, as to whose eligibility they are themselves the final judge, they violate all democratic principles. " Self-constituted and self-perpetu- ating oligarchies" is the slogan of attack, which may be directed either against the selective principle itself, or against its application. In so far as the principle itself is attacked, the charge is clearly untenable and is based on a false conception of what democracy itself demands. Fi-ee voluntary associations of self-selected individuals, endeavoring to 226 RISE OF BAR ASSOCIATIONS secure general action in furtherance of their particular views, are of the very essence of democracy. Proposals, under any system of government, must originate with the few; it is only choice or ratification that can be exercised by a democratic majority. The existing relation of bar as- sociations to the community at large affords, indeed, a perfect example of the way in which a typical democracy operates. Such authority as these associations possess is a purely moral one. When they recommend action the general principle of which is approved, their lead is followed in respect both to the general principle and the subordinate detail. We have seen that they deserve credit for having thus initiated and formulated a considerable number of reformatory measures which with- out their leadership would not have been put into effect. If, on the other hand, they recommend action suggested by that naiTowness of outlook which a too limited circle of personal contacts is apt to breed, then still no positive harm is done, because in this case nobody pays any attention to them. They cannot under any circumstances consti- tute a danger to democracy. Quite the contrary, democracy would be in a bad way if the fullest freedom of association and initiative were not allowed, in time of peace, to any and all groups of individuals. It is one thing, however, to recognize that the existing legal pro- fession is privileged to determine its membership in any way it sees fit. It is quite another thing to enquire whether, with due regard to the influence which it aspires to exercise in the state, it determines its membership in the wisest manner. The importance of the policy it adopts in this respect is concealed in the immediate present by the fact that rival self-appointed groups, possessing a colorable claim to lead, cannot be organized over night among a large mass of individuals. Up to a certain point, therefore, existing bar associations may fail to rise to the fuU measure of their opportunities, arid the only result will be that nothing whatever will occur. They will remain the only leaders the practitioners possess, even though they lead to nothing. There will always be an element in the community that will justify precisely this result, and find it the especial merit of the present system of bar asso- ciations that it has prevented more than it has accomplished. History seems to teach, however, that eras of conservatism, when the advocates of progress are daunted by the mechanical difficulties in their way, are followed by periods of somewhat rapid change. A younger generation sweeps mere obstructionists to one side and, if it finds the existing ma- chinery inadequate, devises some that works better. Our bar associa- THE BASIS OF PROFESSIONAL SELECTION 227 tions are not under violent attack to-day, because there is for the moment little general interest in legal reform either within or without the profession. On the one hand, these associations are not vigorously fostering action that large sections of the public opjwse. On the other hand, they are not blocking action vehemently desired by important portions of the community. But are they doing all that they ought to be doing even to-day? And in the future, when there occurs one of our periodical popular outbursts against law and lawyers, will it find these associations able to guide the agitation along sane lines.? Are they so constituted as to be capable of exercising leadership in a democracy that is determined to advance, or is such negative influence as they now exert a mere reflex of present-day apathy .'' They cannot work positive harm. They can keep some positive harm from being done to-day. But are they really accomplishing much positive good? Will they be able even to prevent positive harm in the future? If it is their ambition to play a leading part in a democracy organ- ized for effective action, they will have to avoid two quite different evils. On the one hand, in the interests of their own capacity to initiate, there must be no hesitation in fearlessly applying the selective principle. They must not be a heterogeneous collection of individuals incapable of uniting on a definite forward policy. On the other hand, if they hope to win popular support, they must not appear to represent a class or clique, and so discredit in advance any policy upon which they do unite. The ruling populace is suspicious of elements that are not in touch with itself. In political life proper, the competition for leader- ship between two party organizations, each possessing a consecrated and, as it were, a common-law right to try to lead, tends to keep both of them fairly responsive to the wishes of the unorganized mass of voters outside. Yet ev6n here it has been thought necessary to try ex- periments designed to diminish the power of rings and bosses. The weakness of the profession as at present organized is clearly in part attributable to both these causes. Some bar associations exhibit the one defect, some the other. Members of a state bar association, operating in any case under the disadvantages of a congested calendar, often have not enough in common with one another to enable them to join in pushing a reform. Local associations may possess the neces- sary solidarity of sentiment and esprit de corps, but do so at the ex- pense of popular appeal. "High-toned" organizations are sufiiciently unpopular when the tone is supposed to be an ethical one. If in addi- 228 RISE OF BAR ASSOCIATIONS tion social and even racial discrimination can be imputed to the mem- bership committee, their political usefulness is ended. That blend of qualities which enter into the Anglo-Saxon concept of a "gentleman" is a very precious heritage for an individual to possess; but anything that looks like a claim on the part of the well-bred to constitute a sepa- rate interest in the state provokes violent opposition from a still sensi- tive democracy It is not here asserted that any city bar association is being run on the lines of a social club. It is asserted that some city bar associations appear to be so run. If they are content with being only dignified, the suspicion may be ignored; but if they aspire to be per- manently influential, care should be taken not to arouse the bitterness of an excluded class. No American citizen of sound professional train- ing and good repute should be given even an excuse for asserting, on however insufficient grounds, that neither he, nor his son, nor his son's son can ever hope to be one of the inner circle of lawyers. In avoiding this second evil, however, we must be careful not to fall into the first. The solution of the membership problem does not lie in ignoring distinctions which, whether we like it or not, divide practi- tioners into different types, and are far stronger than the bond of being a "lawyer." It consists rather in discriminating even more carefuUy than at present between these different types, but discriminating be- tween them on grounds that can be avowed as distinguishing not the good lawyer from the bad, but the true professional from the practical craftsman. Between the product of a strong university law school, rest- ing upon a certain amount of liberal education, and a young man who has secured just enough training to be admitted to the bar, there is a gulf, which their subsequent experience in practice is more likely to widen than to bridge. To expect individuals so different from one another to be able to cooperate, on an equal footing, in a professional way is to expect what, except in the rarest instances, never can be and never ought to be, so long as we look to education to mould character. The comparatively untrained man may be equally worthy, and in his own line of work equally competent. But if the one who has enjoyed the greater opportunities has not in many ways grown apart from the other, and if, in particular, he is not the better qualified to discharge professional responsibilities in the spirit of noblesse oblige, then Amer- ican higher education is indeed a failure. The truly democratic attitude for the bar associations to adopt would be to recognize that the commu- nity needs a greater variety of legal practitioners than can be made THE BASIS OF PROFESSIONAL SELECTION 229 to cohere into a single professional class; and the truly democratic method of selecting the members of such a class out of the wider prac- titioner group would be for the associations to require stiff educational qualifications for admission into their own number. When these associations were first organized out of lawyers of all ages and all sorts, moral qualifications only were sought. No one can tell, however, whether a young man just admitted to practice is vir- tuous or not. Either he must be refused admission until he has had time to establish a record — in which case the association lacks the invigorating influence of youth; or he may be admitted on the ground that there is nothing against him — in which case the pretended quali- fication disappears; or, finally, preferential treatment may be accorded to a young man whose connections are good — in which case favorit- ism is charged by the disappointed. The American Bar Association, by limiting membership to practitioners in good standing for five years, chose the first of these three courses.-' Most other associations chose one of the other two. Given the condition of legal education at the time, it is difiicult to see how any other course could have been fol- lowed. But in proportion as the educational tangle may become un- snarled, to that extent it may become possible to advance the new pro- fession from a vague moral basis to a definite educational one. If an association should think it desirable to demand for admission to its membership, in the case of younger practitioners, attainments decid- edly higher, as respects both general and technical education, than those required by the state for admission to the general bar, and should admit virtually as of right young men so qualified, the system would operate more as an incentive and less as a barrier. Those law schools and those practitioners that chei'ish genuine professional ideals could fortify one another in this way. The door of opportunity would still open with greater ease to some young men than to others, but to none would it be definitely closed. An irregular education would not, of course, preclude the admission of older practitioners, on the basis of distinguished careers at the bar; membership secured on these grounds would constitute a real professional tribute to their ability. A profes- sion, the bulk of whose membership was thus united by a background of similar educational experience, would be far more cohesive, far more 1 The constitutions of the Connecticut and New York State associations had already required three years in good standing. In 1917 the American Bar Association low- ered its requirement to the same figure. 230 RISE OF BAR ASSOCIATIONS able to act as a vigorous unit, than it is to-day. And if in the process of passing through the colleges and the law schools, a student, of what- ever origin, did not absorb, in addition to his formal education, the essential characteristics of an American gentleman as well — character- istics which association with other gentlemen, after graduation, would foster and maintain — it would seem as though a grievance committee, with a reputation for holding its fellow members to higher standards of conduct than would be permissible outside, would constitute a suf- ficient corrective and would provide a highly appropriate means of maintaining the "honor and dignity of the profession." ^ The constitution of the inner bar upon this defensible basis would incidentally be an incentive to the excluded practitioners to free them- selves also from suspicion of moral or educational taint. As in the case of English solicitors, an independent organization charged with re- sponsibility for them would doubtless arise. Since, moreover, existing bar associations vary greatly in their membership policy, it is highly probable that some of them will prefer to remain associations of a rela- tively inclusive type. It may be that out of these elements this second organization will be in time compounded. It would be futile, however, to attempt to forecast the precise line of development, or to lay down in any detail an ideal plan. The suggestion here put forward is merely that those bar associations which do honestly believe in the selective principle might well cease to apply it in the somewhat shamefaced and svb rosa manner that too frequently characterizes its operation to-day. Instead of fruitlessly pleading with courts and legislatures to raise re- quirements for admission to the bar in general, they might better turn their attention to that inner circle of the bar which they themselves already represent and control. If their own by-laws set up definite edu- cational standards, to which younger applicants for admission must conform, there is ground for hoping that the leadership, which their selected membership has already been permitted to exercise in some degree, would constitute an increasingly important factor in our legal development. 1 The engineering associations, whose relation to engineering practitioners offers an analogy to our subject far closer than any presented by medical education, have al- ready begun to discuss the propriety of requiring scholastic standards for admission to their membership. UNION OF ASSOCIATIONS 231 2. Union of Bar Associations If this much is accepted, then the second question which agitates the profession to-day — the question of separatism versus unity — whether state or local associations should be independent of the national asso- ciation or should form constituent parts — seems comparatively simple. There can no longer be any real doubt that the American Bar Associa- tion is destined to survive, and that its pronouncements will continue to carry weight with state and local associations. Whether such associ- ations remain loosely affiliated with it, under the recently introduced system of a Conference of Delegates meeting as one of its numerous Sec- tions, or whether those associations in which the professional spirit is equally strong are made component parts, does not alter the essential fact that the American Bar Association already heads a lawyers' ma- chine that is here to stay. The change that would be effected, if it were to break off all relations with associations that are not in sympathy with its fundamental aims and establish an intimate organic relation with those that are, would be merely the change of a machine that works badly into one that works well. There is not the slightest danger that — as has sometimes been charged against the medical profession — the lawyers' machine may function too efficiently for the common good. Concerned as it is with the protection of private rights, it will always find public opinion on the alert. Its functions, in a broad sense, are polit- ical; and in politics no one can domineer. Like the strictly partisan or- ganizations when they propound their solutions for the problems of the day, it will be obliged, in order to exert any real influence, to move along with the great stream of democratic thought. The people will follow its lead only if they are convinced that it is heading in the right direction. The danger is not that it wiU lead us astray, but that it will not lead us anywhere at aU ; that in a country guided by propaganda of every sort there will be none devoted to the advancement of justice. What does an engineer do when he finds that he has a noisy jangling machine, with a low operating efficiency .? Does he not endeavor to repair some of the parts — scrap and replace those that are beyond repair — finally tighten up and adjust the whole so that there will be as little as possible of that form of waste technically known as "lost motion".? A similar treatment accorded to the loosely connected bar associations might be expected to yield results comparable to those that have been obtained in two other fields of organized activity. Our national political parties in their compounded organizations have found a means whereby 232 RISE OF BAR ASSOCIATIONS the local units may serve local ends and at the same time add greatly to the efficiency of the organization as a whole. Professional medicine is organized in a similar way and with similar success. Lawyers possess ele- ments in common with both of these groups. They exercise distinctly political functions. They also constitute, equally with physicians, one of the traditional learned professions. There may still be some reason, not clear to one who stands on the outside, why state and local bar associa- tioifs, genuinely selective in character, should not constitute the "portal of entrance"^ to the American Bar Association, but the experience of these other organizations at least merits careful consideration.^ 3. Relations between the Professional Organizations and the Lam Schools In regard to the third point under discussion — the proper organic re- lation of the schools to the practitioners' association — the lesson of experience is not so clear. Nothing is to be learned here from partisan politics, the training for which is still in the apprenticeship stageof edu- cational development. Efforts made by Columbia as early as 1880' to establish a school of practical training for public life merely served to reveal how far distant we are fi"om being able to place governmental ad- ministration (outside of private law practice) on an institutional basis. Civil -service cram schools, which spring up wherever an examination for minor administrative positions is required, have nothing in common with professional higher education. Turning to medicine, we find that here the original device of permit- ting every regularly organized medical coUege to send two delegates to the American Medical Association did not work well. It was abused by the representatives of the inferior schools, who were enabled thereby to prevent the association from taking any vigorous steps to elevate edu- cational standards. In the early seventies all school and hospital dele- gates were accordingly thrown out, but still no substantial general ad- 1 This metaphor, rather than the mechanical one, is the one preferred by medical men to describe their organization — except when they are attacking it. 2 Under the present regime of competing associations, grovrth is largely dependent upon systematic membership drives. An association that has been thus reduced to importuning reputable practitioners to come in will not be sympathetic with any re- form that makes this task harder. This was the ground of the objections voiced at the 1916 meeting of the American Bar Association to the proposal of the Conference of Bar Association Delegates (see page 215) to limit membership, in general, to members of recognized state bar associations. 41 Rep. Am. Bar Ass. 10-18. 3 See below, pages 334^335. RELATIONS WITH THE LAW SCHOOLS 233 vance was made until after the Association of American Medical Col- leges was organized in 1890, on the initiative of six Baltimore faculties. The dominant position secured by the practitioners' association, which has been criticized as being too absolute, is directly traceable to these causes: first, the establishment in 1885 of an organ of publicity, the Journal of the American Medical Association ; second, the financial re- sources derived from this and from a paying membership numbering to- day between 4)0,000 and 50,000; third, constitutional reforms effected in 1901 whereby the government of this large membership was vested, as always, in delegates chosen by the constituent associations, but the numerical basis of representation was changed so as to reduce this body to workable dimensions.^ This made possible the transformation of the annually appointed Committee on Medical Education into a perma- nent board, with compensated executive officers — the so-called Coun- cil on Medical Education, which summoned representatives of medical schools, state licensing boards and universities into conference, and ren- dered its first report in 1905. The final result of their activities has been to produce the present highly centralized organization of medical edu- cation, which may be described with substantial accuracy as follows : an element in sympathy with a few of the more advanced schools leads the Council; the Council leads the Association and through it all other fac- tors involved in the problem, including the public at large. Public opinion is not sensitive to charges that the situation is inherently un- democratic, nor even to the suggestion emanating from an official of the Association that legislation goes too far when it establishes an ab- solute monopoly, and prevents a patient from being treated, if he wishes to be, by an irregular practitioner.^ In spite of occasional friction caused by the demand of medical sects to secure similar protection under 1 Under the original constitution, whereby all local associations were entitled to one representative for every ten members or a major fraction, the governing body would now number approximately 8000. Under the new constitution the House of Delegates is limited to a total of 150, apportioned among the constituent state or territorial as- sociations in proportion to their active membership. This compact body is the real successor of the original American Medical Association. The large "membership" of over 80,000, in the present American Medical Association, is merely the former ag- gregate of state associations, appearing under a new name. Such of these ex officio members as pay dues are termed "fellows," and acquire thereby the right to receive the Jowrnal of the American Medical Association, to take part in an annual "Scien- tific Assembly," and to be elected to the governing House of Delegates; the number of these fellows, in 1920, was over 40,000. 2 See Simmons, George 'il.,What the American Medical Association Stands For; ad- dress delivered before the Kentucky State Medical Association, 190T. 234 RISE OF BAR ASSOCIATIONS the laws, the people are on the whole content to let doctors be as un- democratic as they please, provided they are both expert and human in their practice. The fundamental conditions under which legal education operate? differ radically from the above in at least two respects. Schoolmen do not dominate the practitioners, many of whom are still far from con- vinced that a student's entire training should be received in or con- trolled by the schools. And the practitioners' bar associations them- selves are far from dominating public opinion. When schools and as- sociations work in harmony, they usually succeed eventually in secur- ing that minimum of legislative change which is desired by both. When they oppose one another, it is usually the schools that triumph, at least to the extent of blocking hostile legislation.^ Add to this that the pos- sibilities of effective evening instruction, with its attendant separation of schools into two quite different types, are far greater in law than in medicine, and it is clear that medical precedents must be used with great caution. If the establishment of a proper relationship between the schools and the profession is still to be determined, experience at least warns us of certain evils to be avoided. The easy device of appointing the head of a law school as chairman of the committee on legal education is prob- ably the worst of all possible types of interconnection. Instead of re- sulting in a joint plan of action, agreeable to both the schools and the practitioners, the arrangement usually results in no action at all. On the one hand the chairman may be satisfied with things as they are, in which case no one can prod him into moving: This occurred at the very beginning, when Dwight occupied the chairmanship of the New York City bar association committee. His influence in the fight against codification was too important to make it desirable to dislodge him. Lewis L. Delafield, the pioneer of professional interest in educational reform, was forced to shift his activities to the new state association. There is more than one law school even to-day whose interests are safe- guarded by the circumstance that its dean occupies, in the state as- sociation, a similarly entrenched position. Or again, if a committee, dominated by a schoolman, proposes positive action directly beneficial 1 The success of the Suffolk Law School of Boston in securing from the legislature in 1914 the privilege of granting the LL.B. degree against the opposition of all the other Massachusetts schools, the State Commissioner of Education and the Boston Bar Association, is a recent striking illustration of the impotence of a professional organization when opposing a law school that knows how to fight for what it wants. RELATIONS WITH THE LAW SCHOOLS 235 to law schools, it speaks with little authority before the whole body of practitioners, who can usually be trusted to negative or to pare away the proposals. This was the result of appointing to the chairmanship of the first American Bar Association committee a schoolman — Carle- ton Hunt of the University of Louisiana (Tulane) — who took his re- sponsibilities seriously. He and all his successors profited by the ex- perience of an initial rebuff. Since then only the most moderate pro- posals, from a law school point of view, have come before the Association for discussion. Thus, in one way or another, the tendency of the system is to keep things as they are — a result doubtless preferable to pro- gress in the wrong direction, but not very satisfactory either to prac- titioners who believe that our best law schools are deficient in some respects, or to schoolmen who believe that the associations are not backing them as they ought to. The truth of the matter is that these associations, composed largely of practitioners without law school training themselves, have never felt a keen interest in the schools. Practitioners have displayed toward them the kindly tolerance and even sympathetic approval that the mere school teacher is apt to receive from vigorous men of afFairs.'^ They have not been genuinely interested in making these institutions effective factors in the upbuilding of the new profession. The circum- stance that the schools are divided among themselves has of course greatly contributed to the difficulty in establishing satisfactory con- tacts. Harvard, for instance, began in 1870 to display eccentricities so extraordinary, -from the orthodox point of view,^ as to bring into ex- istence two years later a rival Boston school.* For nearly twenty years after this the general attitude of aU other schools toward Harvard was that it was riding a New England hobby. What was the natural course for the associations to pursue in such a situation.'' In Boston itself, where Harvard, right or wrong, is always a power to be reckoned with, the easiest course was to do nothing. The local bar association avoided all difficulties by omitting the usual committee on legal education. Elsewhere the easiest course was to assume that the overwhelming pre- ponderance of conservative opinion, both in the schools and out, made it unnecessary to take Harvard seriously. In other local associations, 1 And not always this. Compare, for instance, the sneer at " these learned doctors of law schools" when the 1906 report of the Committee on Legal Education came up for discussion in the American Bar Association (29 Bep. Am. Bar Ass. 18). 2 Pages 369 ff. 3 Page 399. 236 RISE OF BAR ASSOCIATIONS accordingly, the representative of a local school was, quite naturally and with little thought, placed in charge. The American Bar Asso- ciation took definite sides by making the dean of the new Boston Uni- versity school a member of its educational committee. When, after 1890, Harvard prestige proved stronger than the lethargic opposition of its critics, and other eastern university law schools began to follow its lead in more or less modified form, representation on the committee was accorded to it, but the controlling chairmanship was retained by western schools. The organization of the Association of Ameiican Law Schools in 1900 deepened a line of cleavage that thus early appeared. The net result has been that an increasingly important group of schools Kas come to be more and more out of touch with the organized body of practitioners. Neither supports the other as it might, and the influ- ence of both is weakened at the bar of public opinion. The solution of this problem that commends itself to the writer has already been indicated. TTie suggested requirement by the bar asso- ciations of high educational requirements for admission to their own membership would enable the minority of law schools and the minority of practitioners that cherish the highest professional ideals to fortify one another. Freed from the influence of the craft school and its product, they should be able to reach a common understanding as to the pro- portion of theory and practice that would justify alike the school in awarding its degree to a young man, and the profession in admitting him to its privileges and responsibilities. Two at present inchoate groups of professional organizations, the one standing primarily for sound ethics, the other for sound education, would thereby be fused into one, to their mutual benefit. For although in the preceding discussion the bar associations have been considered as the only organized exponents of professional ideals among the practitioners, this is a slight over- statement of their position. Law school alumni associations, first formed by Harvard in 1886, represent the extension of schoolmen's lines of institutional division out of the academic into the practitioners' field, and suggest that if the group of bar associations refuses to accord proper weight to sound institutional training, it may some day find itself faced by a rival professional organization based entirely upon such considerations. On the other hand, it is far from certain that the mixed membership of existing bar associations would look with favor upon the step proposed. Time only will show whether factional divi- sions in the profession will be harmonized by a method of treaty and AN INNER BAR 237 alliance between the relatively conservative practitioners and the pro- gressive schools; or whether, through a federation of alumni associa- tions, these schools will be able to dispense with the cooperation of orthodox bar associations in securing action from the legislatures and the courts; or whether by a process of peaceful penetration, similar to that which occuri'ed in the medical profession, schools that possess suf- ficient financial resources to realize their aims will gradually, through their graduates, obtain control of the American Bar Association, and thus be in a position to force its unqualified endorsement of their entire programme.* 41. An Inner Bar distinguished Jrom the General Body of Practitioners In conclusion, one point of fundamental importance must be reiterated. In whatever way a united profession is finally formed, the selective principle must be kept to the fore. The state determines the mini- mum conditions under which young men may be authorized to prac- tice law. Although these conditions need to be made and will in time become less liberal than they now everywhere are, political considera- tions will prevent them from ever being brought up to the standard properly insisted upon by a minority of law schools. Lawyers consti- tute our governing class, not merely because a large proportion of pub- lic oificials and representative law-makers are chosen from their ranks, but, more fundamentally, because even in private practice they play a supremely important part in the administration of the law. Even under an ideal system of government they would continue to occupy this po- sition. It is equally important for the preservation of our democratic ideals that this class shall not be made inaccessible to young men of moderate means, and that attainments more extensive than the mini- mum required for admission to the bar shall be utilized for the ben- efit of the community. Our legislators can be trusted to keep the mini- mum sufficiently low, and even to overdo their caution in this respect. 1 Discussion of the relations between the American Bar Association and the Asso- ciation of American Law Schools — one of the sore points of current controversy ^- is purposely excluded from the present Bulletin. To avoid misunderstanding, how- ever, it seems proper to indicate the writer's belief that the jestablishment of educa- tional standards for admission into bar associations is a necessary preliminary step', before cooperation between these two organizations can be secured. Meanwhile^ the law teachers' association — for this is what the Association of American Law Schools really is — has as its special province the solution of a large number of educational problems, not directly connected with the organization of the profession. 238 RISE OF BAR ASSOCIATIONS It remains for a selected minority to render the public service, in the improvement of our law, that can be accomplished only by those whose training has been both broad and thorough. The mission of a certain type of law school is to provide this training. To accomplish the end in view, however, much more than the work of scholars and teachers is required. Practitioners of standing must apply their professional expe- rience and their professional influence to the same task. They must cul- tivate and develop into a living growth the seeds implanted in their student days. They must not be content with futile recommendations of some idealistic scheme, but must labor zealously to secure the actual adoption of concrete measures. This is to-day the particular responsibility of bar associations. It is a responsibility that they cannot discharge if they endeavor to make of themselves inclusive associations of all reputable practitioners. The state will always admit to its general bar practitioners of types too diverse to be capable of uniting into a single forward-moving profes- sion. We need one group of lawyers who have enough in common with one another to be able to reach an agreement upon something definite — enough at stake to stimulate them into conducting a vigorous cam- paign in its behalf — enough breadth of view to realize that democracy will always insist upon retaining ultimate control, and will never un- reservedly commit either the making or the administration of the law into the hands of any self-constituted body, however deserving. This gi'oup should include the lawyers of superior attainments, of broader vision, of greater ability to identify themselves with a larger whole than is possible for relatively untrained minds. The highly ti'ained type of lawyer is most interested, as well as best qualified, to undertake the task of making the law of the community better. We need also, outside of this strictly professional group, less highly trained lawyers to administer, in behalf of the people, the law as it is — lawyers who command their confidence more than the inhumanly expert — lawyers whose own training should be earned at least so far that they can intelligently appraise the activities of the expert group, deferring to them when they so deserve, opposing them when opposition seems needful — a class in the community that may help to bridge the chasm of mutual misunderstanding and distrust that is always likely to ap- pear between those who know too little and those who know too much about a subject. We do not want a hetei'ogeneous organization which, in the vain effort to do two things at once, endeavors to ingratiate AN INNER BAR 239 itself with public opinion by letting discordant elements in, and ends as a flabby body incapable of coordinated action. No demagogic talk about " exclusiveness " should keep the professional group from ex- cluding those who do not measure up to standards that, independently of state action, itself defines. That these standards should be educa- tional, is the suggestion advanced here. But better even that profes- sional exclusiveness should be of the wrong sort than that members should not be united by ties of mutual sympathy and understanding. PART V CHANGES IN BAR ADMISSION REQUIREMENTS INCIDENT TO THE RISE OF LAW SCHOOLS AND OF BAR ASSOCIATIONS CHAPTER XXI PRIVILEGES OBTAINED BY THE LAW SCHOOLS PRIOR TO 1870 IN a broad way, the general laxity of bar admission standards prior to the Civil War favored the development of law schools. As al- ready pointed out,-' the new type of organized institutional education was built upon the ruins of the older apprenticeship system. Certain adjustments had to be made, however, before the new invention could fit easily into the traditional mechanism. 1. Recognition oj' School Work in States Requiring a Definite Period of Preparation The first of these adjustments involved the question of whether time spent by a student in a law school might be counted toward the pre- scribed period of preparation in states where this requirement had been preserved. So far as concerned recognition of the work of a local law school in place of the traditional office work, there was little trouble outside of the middle states. The Litchfield and New Haven schools grew so naturally out of law offices that no one seems to have ques- tioned their students' right to be admitted under the Connecticut rules. Similarly, Harvard considered that by putting its school in charge of a practitioner in the Supreme Judicial Court it had brought its stu- dents within the rule requiring law study to have been pursued " in the oifice and under the instruction of some counsellor" of that court ; and in this interpretation of the rule Chief Justice Parker, for obvious reasons, acquiesced. The Ohio rules also presented no difficulties to the organizers of the Cincinnati Law School, for all that Ohio required was two years study of the law, without indication of where this study was to be. In the middle states, on the other hand, the rules were more ex- plicitly worded to require an actual clerkship, and here they operated for a time to check the development of law schools.^ New York, it is true, as early as 1797, supplemented its regular apprenticeship system for attorneys by a rule providing that every person who had " regu- 1 See above, pages 44-46. 2 See above, page 126. 244 ADJUSTMENT OF BAR ADMISSION RULES larly pursued juridical studies under the direction or instruction of a Professor or Counsellor at Law for four years" should be admitted to the superior degree of counsellor. This effort to encourage Kent's Colum- bia experiment came to nothing, however, and the rule was rescinded in 1829. In 1832 the best that New York University could secure from the Supreme Court for its projected law school was permission to have its course count as two years on the seven years clerkship. The New York City Court of Common Pleas would allow law school work to count toward only one of the four years of preparation that it required for ad- mission to its bar, and in 1845 the Supreme Court reduced its allowance for law school work to the same figure. Pennsylvania, meanwhile, had made no concessions at all in its less extravagant requirements.-' The path was finally opened to law school development in New York in 1846, through the abolition, by the Constitutional Convention, of the entire apprenticeship system. In Pennsylvania the general system was retained, but in 1853, in the case of bachelors of law of a Pennsylvania college or university who had been admitted to practice in a lower court, the Supreme Court waived its normal requirement of one or two years subsequent practice prior to admission to its" own bar.^ The Phila- delphia lower courts simultaneously made it possible for graduates of the new University of Pennsylvania two-year law school to secure ad- mission to their bars as promptly as office students. The combined ef- fect of the changes made by both courts in their rules for admission was to permit students over twenty-one years of age at the time of en- tering the school to obtain full privileges of practice in two years in- stead of four. Students under twenty-one were still obliged to serve an additional year's clerkship before taking their bar examinations for admission to the lower courts, but — if they secured their degree — they also were relieved of the two years' delay ordinarily required be- fore they might begin Supreme Court practice. As in the case of Harvard, these liberal terms showed the advantage of having a judge on the faculty. 1 So far, at least, as the Supreme Court was concerned. Undoubtedly Judge Reed at Dickinson and Professor Porter at Lafayette saw to it that their students would be admitted to local practice without delay. The Philadelphia bar, on the other hand, was satisfied with its smoothly working and financially profitable apprenticeship system. ° The Supreme Court did not conduct any examination of its own. The exemption of law school graduates from the requirement of practice in the lower courts must not be confused with the "diploma privilege" proper (exemption of graduates from bar examinations), discussed in the next section. RECOGNITION OF TIME SPENT IN A SCHOOL 245 The question whether credit should be allowed for work done in a law school situated outside the state was usually merged in a broader one — whether credit, should be allowed for any work done outside the state. If it were allowed at all, study in a "national law school" could usually be brought within the terms of the rule. The general argu- ment, however, against law school study — that it may be defective on the practical side — applies with peculiar force to law study pursued outside of the state in which the applicant intends to practice. There was, accordingly, some hesitation in countenancing this departure from the original theory of a locally apprenticed bar. New York's "Professor or Counsellor" was in 1803 required to be a local one. In several states the vacillating policy pursued in this respect reveals an early conflict between the national schools and the local profession. South Carolina, in 1785, accorded to law school work the earliest explicit recognition that has been found in any state. Its statute admitted to practice those who had studied three years in a foreign law college, and in addition passed an examination — this latter check not being required, at this time, in the case of applicants admitted after a four years local clerk- ship. In 1796, however, the state again required a local clerkship of everybody. In 1801 it facilitated attendance at Litchfield by an amend- ment permitting the clerkship to be served in or out of the state. ■'^ In 1806 this was modified again by the requirement that the last year must be spent in a local office. Finally, in 1812, the apprenticeship system was abolished. Similarly, in Michigan, the struggles of Harvard partisans may be seen in a series of statutes which, in 1827, required merely an attorney's certificate of three years law study anywhere; in 1829 provided that not more than one year of law school study might be counted toward this; in 1833 provided that any amount of law school study might be counted, if it were not less than a year; in 1838 provided that the examining judges should determine how much credit (not more than a year) should be allowed for any amount of time spent in a law school; finally, in 1846, cut the Gordian knot by abolishing all requirements of study. Gradually the majority of states that attempted to preserve the re- quirement of a prescribed period of study came to modify the original rigor of the local-apprenticeship system in one or another of the ways indicated by these states. Sometimes only a specified part of the period 1 Calhoun entered Litchfield under this rule. 246 ADJUSTMENT OF BAR ADMISSION RULES need be spent within the state, or in an office.' Elsewhere there was usually only a vague requirement that the applicant must have studied or read law during the specified period.^ This degradation of the rule, for which Ohio is primarily responsible, made anything possible. In a very few cases, the rule was phrased so as to permit the entire time to be spent in an out-of-state school, while yet excluding mere private study.' In a few states law studies pursued outside of the state contin- ued, technically, not to be recognized, but it is safe to say that if they had been pursued in a law school, time spent in this way would, as a matter of fact, be counted. Statutes and court rules which on their face seemed to limit the applicant to local office work must have been in- terpreted in the light of the growing reputation of the national schools. Then as now an accommodating attorney could undoubtedly be found 1 South Carolina, 1806-12, see text, preceding page. Massachusetts, 1810-36, the first one of the three years law study required of col- lege graduates, or the first two of the five years required of others, prior to admis- sion to the lower courts, might be spent in the office of an attorney of the highest judicial court of another state. Maine, 1821-30, one of the three years — 1830-37, two of the three years — of pro- fessional study might be spent outside the state. Michigan, 1829-33 ; 1838-46, see text. New Hampshire, 1833-38, two years of the three required of college graduates or three years of the five required of others, prior to admission to the lower courts, might be spent outside the state. New York, 1845-46, one year at the Harvard or Yale schools might be counted toward the minimum three years clerkship required for admission as attorney to the Supreme Court. Legal studies regularly pursued in another state might also be counted toward the remaining four years of either classical or professional training. New Jersey, 1855, one year, 1868, one and a half years of law school work might be counted toward the four years (or for college graduates three years) required for admission as attorney. Rhode Island, 1857, one and a half years of the two years required of college grad- uates might be spent in a law school. No limitations on the three years required of others. Illinois. For a few years prior to 1865, two years were required for admission to practice in Chicago. Of these one need not be in the state. Colorado, 1861-66, as Illinois. Kansas, 1868. Neither of the two years which must be spent reading law was re- quired to have been spent in the territory. The last year, however, must have been spent in an attorney's office. Wyoming, 1869, as Kansas. 2 Ohio, 1819; Michigan, 1827-29 ; Maryland, 1832; Montana, 1865; Colorado, 1866; Oregon, from before 1870. 3 South Carolina continued the tradition started in 1785 and 1801 (see text) by requir- ing, in 1868, either two years in a local office, or graduation from any recognized law school in the United States. The Michigan rule of 1833 (see text) was copied by its daughter territory, Wiscon- sin, 1836-39, with a reduction of the total period from three years to two. RECOGNITION OF TIME SPENT IN A SCHOOL 247 who would certify that the years spent in these schools had been spent "under his direction," or even "in his office." Looking at the letter of the law only, the manner in which law school development was aflf'ected by the existence of prescribed period pro- visions in 1870 may be exhibited as follows : System of Preparation Required by the Bar Rules in 1870 Nwmher of T . J- .. 1 • • 1 u I iwrisdictiona Jurisdictions containing law schools •' Technically entire period must be spent under local practitioner or in local law school. For certain types of applicants (non-college graduates or ap- plicants under twenty-one) the period prescribed by the state was a year longer than the course given by the law school, thus forcing a supplemen- tary year's clerkship {Connecticut, Pennsylvania) 2 Graduation from any recognized law school accepted in lieu of prescribed period (South Carolina) 1 Requirement phrased in general terms {Ohio} 1 No period of preparation prescribed 17 21 Jurisdictions not containing law schools : Technically entire period must be spent under local practitioner ( Vermont, Delaware, Washington Territory/) 3 Technically entire period must be spent under some practitioner {Ne- braska) 1 Specified portion of prescribed period might bespentinalaw school {Rhode Island, New Jersey, Kansas, Wyoming) 4 Requirement phrased in general terms {Maryland, Colorado, Montana, Oregon) 4 No period of preparation prescribed 14 26 Total number of jurisdictions 47 Study of this table will show that, by 1870, already established schools were in no way discriminated against by such old-fashioned apprentice- ship requirements as lingered in their home states. If no applicant for admission to the bar was required to go to a law school, at least no ap- plicant was required to go anywhere else, and in an open competition the superior system of instruction was in a position to carry off the honors. If preferential treatment was accorded to either type of applicant, it was, as in Pennsylvania and South Carolina, to the law school graduate. Moreover, in jurisdictions where no law schools had been started, the occasional requirement of office work, even if enforced, was not on the whole a disadvantage to schools in other states. To the extent that the provision tended to keep students out of existing national law schools, it also tended to prevent rival schools fi'om being started in the local- ities. Its effect in either direction, however, was slight. In Rhode Island 248 ADJUSTMENT OF BAR ADMISSION RULES and New Jersey the amount of credit allowed for law school work was nicely calculated at the precise length of the Harvard degree course. If these states chose to demand additional local office training as well, this was in entire harmony with the theory upon which the Harvard law school was founded.^ Now, if prescribed period rules are so phrased, or so interpreted, as to permit the period to be spent in a law school, then these rules are of great assistance to the schools. The principal deterrent upon law school attendance — unwillingness on the part of applicants to devote an adequate time to their education — is removed. The additional ex- pense involved in attending a law school, rather than frequenting an office in one's home town, is a small consideration beside the question of whether one can affiard the time. It is no consideration at aU in the case of a school that caters to self-suppoi"ting students. We may summarize the influence of the nained apprenticeship system upon law school development prior to 1870 by saying that the remains of this system — those portions of the debris that remained standing — were for a time somewhat in the way, but that with a little adjust- ment they became converted into a positive prop to the new educa- tional structure. 2. Exemption of Law School Graduates from Bar Examinations It was only in the North, however, that there existed these state re- quirements of a definite period of preparation, which at first hampered, but finally protected, the law schools. The southern schools from the beginning, and after 1840 a majority of the schools throughout the country, operated in an absolutely open market in this respect. The necessity of somehow passing a bar examination was all that the appli- cant, impatient to enter practice, need bear in mind; and with refer- ence to this requirement the schools were in the unfortunate predica- ment that if, as was usually the case, the examination did not amount to anything, applicants could pass it without attending the school; while if, on the other hand, the courts, manned by office-trained judges, 1 Chief Justice Parker's views as to the practical value of supplementary office work have already been cited in the text. Judge Story, writing at the same date, was equally explicit. He says in his review of Hoffman's Course of Legal Study (Miscellaneous Writings, p. 243), " Such a situation is indispensable after the student shall have laid a foundation in elementary principles under the guidance of a learned and discreet lecturer. He will then be prepared to reap the full benefits of the practice of an attor- ney's office." EXEMPTION FROM BAR EXAMINATIONS 249 decided that since this was the only barrier upon admission it ought to be a serious test, the examination might be one that the school graduates were not fitted by their training to pass. It was natural that these schools, being in so much worse plight than those protected by the prescribed period, should be the first to apply to the state legisr latures for special privileges, and that later their example should be followed by these others. After this, the revival of prescribed period provisions, in modified form, became a subordinate item in the policy of the schools. As recent graduates entered into politics, and thus an element friendly to the schools appeared in the legislatures, exemption of future graduates from all examination or licensing tests was boldly sought. Even when the bar examination amounted to nothing, adver- tisement of the fact that law school graduates need not take it was cal- culated to stimulate attendance in at least three ways. Students were re- lieved of the in terrorem effect that even the weakest examination exer- cises upon an immature mind. In many cases some incidental inconven- ience and expense would be obviated as well. Above all, the possession by the school of this privilege definitely stamped its work with the seal of approval by the state. When the bar examinations were notoriously a farce — when, also, the corresponding privilege of exemption from medi- cal licensing tests was one that medical school graduates had long en- joyed"^ — it seemed almost an insult to withhold the same mark of recogni- tion from a deserving law school. The argument was particularly strong in the case of a university which was itself supported and controlled by the state. In a few cases there was added to these considerations the fear that the state authorities might set a wrong kind of examination. This " diploma privilege," as it is usually termed, appeared in Vir- ginia first in 1842, in the shape of a statute permitting the diploma of graduation from any university or college law school in the state to take the place, in Virginia's complex admission system,^ of the usual license. 1 In New York since 1797 ; in Maryland since 1799. See Davis, N. S., History of Med- ical Ecktcation and Institutions in the United States, 1851. Dr. Davis was a strong op- ponent of this exemption, which at the time he wrote, was common in states that possessed any regulations at all affecting the practice of medicine. Such regulations of medical practice have never had any other purpose than that of raising the standards of the profession as a whole as nearly as possible to the level already reached by the schools, or by certain schools. It was therefore natural that in many states the graduates of these schools should have been exempted from the regulations. Experience demonstrated, however, that even in medical education this was a mistaken policy. 2 See above, page 97. 250 ADJUSTMENT OF BAR ADMISSION RULES In this case there was nothing in the examinations conducted by the judges to hamper the work of any school. The passage of the act was dictated entirely by the general considerations above described. It rep- resented mere legislative favoritism of the law schools maintained by William and Mary and by the University of Virginia, at the expense of other methods of legal education — notably rival private law schools. It was entirely out of harmony with the laissez-faire spirit of JefFer- sonian idealism, and was repealed in 1849 at the instance of Professor Minor of the University school, who informed the Code Revisors that he thought it "better for those institutions, as well as the young gen- tlemen who graduate therein, that they should not enjoy this ex- clusive privilege; but that their fitness to practise law should be tested in the same way with students in private offices or in private law schools."^ This repudiation of legislative coddling exhibits Professor Minor in a highly favorable light. And in a state where there were no existing bar standards, and the reputation of the State University was such that its lead was likely to be followed by the courts, there can be no ques- tion that Minor's was a wise and broad-minded policy. As a doctrine of universal application, however, it does not quite meet the situation that exists when courts attempt, independently of the local law school, to develop a rigid system of examinations, uniform for all applicants, however trained. This was the handicap under which the law depart- ment of the University of Louisiana labored in 1855. The Supreme Court had prescribed a list of textbooks, in which for fifteen years there had been no change. A standing committee existed to examine New Orleans applicants upon these texts. This was obviously an intolerable clog upon the development of the law school curriculum. It excused, if it did not justify, the enactment that year of legislation exempting law graduates of the State University from any further educational tests for admission to practice. After this precedent, other schools secured similar legislation, some- ' Report of the Beuisors, 1849, p. 824. Minor had also two other objects in desiring the change : "one, that the Judges might have an opportunity of seeing with what degree of thoroughness students were prepared for the practice ; and the other, that these dignitaries might have be- fore them, in young men educated here, a much higher standard of attainment than they had been wont to require." Letter to Lewis L. Delafield, printed in Report of the Committee on Legal Education and Admissions to the Bar, made to the Association of the Bar of the City of New York, 1876, p. 14. EXEMPTION FROM BAR EXAMINATIONS 251 times with a similar excuse;' more often merely to stimulate attend- ance. In the North an intermediate step, suggested, it would appear, by the Connecticut statute regulating admission to the medical profes- sion,^ was necessary before any school dared to ask for the full exemp- tion privilege. This intermediate step was to have the state admitting authorities conduct the examination for the school's own degree. The opening of Professor Dwight's school at Hamilton College, in a remote village of New York, was made possible in this same year, 1855, by a special act of the legislature authorizing the court to appoint a com- mittee of counsellors to examine candidates for the LL.B. at the school. Students whom this committee should recommend for the degree would be admitted to practice without further formalities. This seemed like a reasonable attempt to reduce geographical inconvenience to a mini- mum, but the practical operation even of this act, and of similar legis- lation enacted the following year for the benefit of Ohio schools, could not have been very different from complete exemption from court con- trol.^ In 1859 the authorities of the Albany Law School, without the slightest excuse on geographical grounds, were able to take the final step. They secured legislation which, in terms, constituted their own faculty the examining committee for admission to practice. The fol- lowing year Dwight secured a similar privilege for his new Columbia law school, and established the constitutionality of this legislation to the satisfaction of the Court of Appeals, against the heated resistance of the Supreme Court judges. New York University, of course, insisted upon receiving the same favor.* One of the inherent vices of the diploma privilege already appeared — the practical impossibility of according it to one without according it to all the law schools of a state. By 1870 nine schools, in seven states, had secured the privilege. Along with many minor variations, one feature was present in every case. Graduates of 1 A convention of Georgia Superior Court judges, during the thirties, defined the con- tent of their examination in very general terms. The New York Supreme Court judges, in 18S8, drew up a more elaborate list of subjects. 2 See Davis, p. 96. 3 In Ohio the legal eifect of the examinations held at the schools was merely to admit students to practice. The schools, however, naturally conferred their degrees on the basis of the same examinations, so that the final result was the same as at Hamilton. Under the influence of this tradition, one of the requirements for the degree In the Cincinnati Y. M. C. A. Night Law Scfiool,as late as 191S, was " admission to practice law in the State where the applicant resides at the time of graduation." * Dwight appeared as counsel for both schools. See Matter of Oradwates, 10 Abbot's Practice (1860), 348 ; In re Cooper, 11 Abbot's Practice (1860), 301, or (less full report) 22 N.Y. 67, for a very interesting exhibition of judicial temper. 252 ADJUSTMENT OF BAR ADMISSION RULES these schools were entitled to practice without undergoing any inde- pendent educational test at the hands of state authorities.^ Occasionally the schools established such friendly relations with the courts or practitioners of their state that they could obtain the di- ploma privilege without recourse to the legislature. In 1863 the Chi- cago examining committee formally extended the privilege to gi-adu- ates of the old University of Chicago law school, but two years later this rule disappeared in a general overturn. No other formal instance, prior to 1 870, has been found. Undoubtedly, however, examining courts or committees were often influenced in an applicant's favor by the fact that he was a graduate of a local school. Indeed, Professor Minor found it a cause of complaint against the Virginia judges that, as late as 1876, they usually declined to examine his graduates.^ Almost invariably the formal privilege was restricted to graduates of a local law school, and no distinction was made in the examination required of other appli- cants, whether they had been trained in an office or in an out-of-state law school. Each state was interested primarily in protecting its own infant industries. The Louisiana statute, however, was notable in that it exempted graduates of out-of-state schools from the usual compre- hensive committee examination, substituting merely an examination by 1 18SS, Louisiana. Law graduates of the State University were entitled to secure license from the court on evidence of good character. And see text, below. 1857, Mississippi. The diploma of the State University law class was made equiva- lent to a license. 1859, Georgia. The act incorporating the Lumpkin Law School (affiUated with the State University) empowered its oflBcials to grant diplomas which should entitle the holders to practice upon payment of the usual fees and taking the oath. 1859, New York. The University of Albany faculty were constituted an examining committee whose recommendation, as evidenced by their diploma, if given for not less than three terms of twelve weeks, would admit to practice. 1860, New York University. The same, but a diploma given for two terms of twelve weeks and one year's study of law elsewhere would also sufiSce. 1860, Columbia College. Similar, but the committee consisted of the professors and the Law Committee of the Trustees, and the course of study must cover eighteen months. 1860, Tennessee. The law faculty of Cumberland University "or any other law schools in this state shall have the same power to grant license to practice law in the courts of this state that the judges of the courts now have." 1863, Michigan. The courts were forbidden to require examination when satisfied that applicant was a law graduate of the State University. 1870, Wisconsin. Law graduates of the State University were entitled to admission upon presentation of a certificate of graduation. ^ "The barren compliment is, in my estimation, a poor recompense for the benefit which the school and the profession might derive from putting our neophytes through their paces before the judges." Letter to Delafield, cited above. EXEMPTION FROM BAR EXAMINATIONS 253 the Supreme Court. In view of the fact that Louisiana jurisprudence is distinguished from that of other states by a strong and quite individual strain of French law, this was a remarkable recognition of the value of law school training in general. The statute showed a discriminating liberality that is seldom found in bar admission requirements. Finally, in Oregon, where no law school existed, the Supreme Court adopted, before 1870, a rule of quite singular generosity. It provided that the diploma of any school that would admit to practice in its own state would also admit to practice there. CHAPTER XXII REACTION OF THE NEW LEGAL PROFESSION AGAINST LAW SCHOOL PRIVILEGES THE preceding chapter makes clear that, immediately prior to the organization of bar associations, the law schools wer§ beginning to take the lead in the development of bar admission rules. When ques- tions arose which affected their interests, and thereby those of the com- munity at large, the schools were in a position to negotiate directly with courts and legislatures. The common device of putting a judge on the faculty was of great assistance in promoting harmonious rela- tions with the courts. The political ambitions of their young grad- uates ensured their representation on the floor of the legislature. In one or the other of these two ways active educational institutions pos- sessed a great advantage over unorganized practitioners. The schools were not yet strong enough to supplant the existing low requirements for bar admission with stringent new rules designed to fortify their work. They were, however, strong enough to prevent the old require- ments from being manipulated to their own disadvantage. 1. Professional Criticism of Law Schools With the advent of the bar associations, a new force, however ineffi- ciently organized, had to be reckoned with. It has proved impossible for these two forces to unite on a comprehensive programme. Such a programme, which provided, among other things, that David Hoff- man's entire course of study, at least, should be given in a three-year law school, was, indeed, laid before the American Bar Association in 1879 by its Committee on Legal Education. The recommendation rep- resented, however, only the views of the three gentlemen who signed it, and received scant courtesy from the Association. It is not by formu- lating and gradually realizing comprehensive programmes of reform . that American democracy expresses itself. Legal education has been patched up since then in the usual way in which our laws and our in- stitutions develop. Sometimes the bar association and the schools have worked together to deepen and elaborate and generally to perfect the rut into which law schools and bar admission rules had fallen, without introducing any essentially new ideas. Sometimes schoolmen continued PROFESSIONAL CRITICISM OF LAW SCHOOLS 255 to be sufficiently in control of the local situation to be able to develop their institutions along such lines as seemed best to them, unassisted but unhampered by the practitioners. Sometimes, however, schoolmen's and practitioners' theories of education came into conflict with one an- other. Two main streams of development had been started : the original movement to foster law schools, itself soon to be complicated by the di- versification of these schools; and a more recent movement emanating from the new profession, to raise standards. At the point where these two streams came together — • the provision made for law schools, namely, in the rules for admission to the bar — countercurrents developed. The older practitioners, influential in the professional movement, and without law school training themselves, saw most clearly that their trust in the schools had been betrayed. While they recognized that a good law school training was desirable, they conceived it to be part of their responsibility to make it good. They sought to impose upon the schools their own educational standards.^ On the other hand, the school authorities felt, very naturally, that a movement not engi- neered by themselves was likely to do more harm than good. The strong- est expression of this feeling was voiced by Dean Langdell of Har- vard with especial reference to two occurrences : the failure of some of his graduates in the recently established Massachusetts county board's examination, and the refusal of the New York court to allow' credit, toward its prescribed period, for time spent in an out-of-state law school.^ After noting that the law schools had not participated at all in the movement to raise the standards of admission in these leading states, and that it was not " in any degree the aim or object of the movement either to support and strengthen law schools or to make use of them in furtherance of the objects in view," he threatened reprisals in the following words: "While this state of things continues, it is obvious that this school has much less to hope than to fear from any so-called efforts 1 See especially Lewis L. Delafield's vigorous attack upon the New York schools in Report of the Committee on Legal Education and Admissions to the Bar, made to the Association of the Bar of the City of New York, 1876. Short period of instruction, absence of entrance requirements, and pecuniary interest in securing students were his principal grounds of criticism. 2 Langdell did not specifically mention the Massachusetts situation. Much of his argument, however, is clearly directed to this point. As to the facts involved, see 14 American Law Revie^o (1880), 76. "Quite a local stir was made by their unexpected rejection of a number of respectable graduates of the neighboring law schools." 256 ADJUSTMENT OF BAR ADMISSION RULES to raise the standard of legal education ; and that its interest lies rather in the direction of opening the legal profession to all the world.'" This utterance shows how sharply contrasted are the points of view naturally held, with equal sincerity, by practitioners and by schoolmen. To practitioners, the schools constitute only one element among sev- eral that must be supervised and improved, for the purpose of raising the general educational level. To schoolmen, assistance in developing their institutions, according to their own ideals, constitutes the essential feature of educational advance, to which all other considerations should be subordinated. 2. Crediting of Lam School Work toward the Prescribed Period Prior to the Civil War, as we have seen,^ the law schools had demanded from the admitting authorities either of two privileges. If a definite period of law study was prescribed, then study in the law school must be allowed to count toward this requirement. If, on the other hand, the only test was a bar examination, then — whether this examination amounted to anjrthing or not — it was often insisted that graduates of the law school should be exempted from it. After the Civil War, the schools grew bolder. The old University of Chicago law school (present law department of Northwestern University) was the first school, in a state where a period of law study was prescribed, to secure exemption of its graduates from the examination. This privilege was accorded as a substitute for the more moderate one of permitting time spent in the school to be reckoned as the equivalent of office study. The substitu- tion was effected in 1863, and lasted only until the requirement of a prescribed period was itself abolished in 1865. Later, there were a few similar instances in other states.' Since, in such cases, applicants, not ac- 1 Annual Reports of the President and Treasurer of Harvard College, 1876-77, p. 87. Extracts from Langdell's attack appeared in 12 American Law Remiem (1878), 601. 2 Preceding chapter. ' Pennsylvania, 1876, time allowance for admission to Philadelphia courts converted into exemption from examination, coupled with abolition of the additional year's clerkship for graduates over twenty-one. This was criticized as going too far. The Supreme Court repealed its old exemption of law graduates from the requirement of lower-court practice prior to admission to its own bar, and by 1881 examinations were again required in the lower courts. Louisiana, 1877-1911, having already the diploma privilege, introduced therequire- ment of a clerkship for non-graduates. Minnesota, 1889-91, introduced the two provisions simultaneously. CREDITING OF LAW SCHOOL WORK 257 tual graduates, were held to a period of service under an attorney, this was a great aid to the exempted schools, both in securing and in retain- ing their students. The difficulty with provisions of this sort was that they ran counter to the interests of schools situated outside of the state. These were unable to secure an extension of the diploma privilege to their own graduates.^ They accordingly exerted their influence to allow time spent with them to be counted toward the prescribed period. Under these circumstances the easiest way to phrase the rules was to give credit for time spent in any school. In 1881 the American Bar Association recom- mended the allowance of law school credit in this indiscriminating manner, and this is now the invariable rule. Wherever a definite period of preparation is prescribed, time spent in any law school may be counted toward it, irrespective of the question whether one or more local schools enjoy the diploma privilege in addition. Such being the general principle on which all parties — local schools, "national" schools and the profession itself — have agreed, two points remained to be settled: first, how much law school work, and second, how little law school work, might be thus credited? As to the first point, the prevailing attitude of the profession has al- ways been that even a complete law school course is inadequate prepa- ration for admission to the bar, and that a certain amount of practical oflice work should therefore be required in addition. The law schools have disputed this contention, and in general they have won their point. Occasionally, they have even succeeded in securing a reduction in the amount of time required of law school students.^ In a few states additional time in oflice practice is still called for, but permission to satisfy the requirement during summer vacations, or the operation of the diploma privilege, makes the rule of no great practical importance so far as local schools are concerned. Upon out-of-state schools it of course bears a little harder. In New York, for other than college grad- uates, the total period is four years, to include at least one year of con- ^ The partial Louisiana exemption was abolislied in 1877 ; the broad Oregon exemp- tion in 1880. 2 For an obsolete Pennsylvania instance, compare page 244. Between 1890 and 1907 the period for non-college graduates in Connecticut was three years, unless they were law school graduates, in which case two years (as for college graduates) would suffice. Since in all cases one year must have been spent in the state, this was in the immediate interest of the Yale law school. The rule replaced one under which Yale enjoyed the diploma privilege. In Michigaj^, since 1913, the period for office students has been four years, as against three years for law school students. 258 ADJUSTMENT OF BAR ADMISSION RULES tinuous clerkship; allowances for vacations, however, make the total time less for a combination of school and office work than for office work only. In general the requirement of supplementary office work, in its present fragmentary form, constitutes a hardship to the student, with little compensating educational or ethical gain. Whether, in spite of this, the principle involved — the encouragement of practical train- ing — is of such importance that it should be carried out more effec- tively than occurs in any state to-day, is a matter of current controversy, as to which a word will be said later.'' A less generally recognized deficiency in our present bar admission rules is the opportunity they afford applicants to build up a prescribed period of study by piecing together small bits of law school and of office work. Originally, several of the states, notably Pennsylvania, accepted time spent in a law school, in satisfaction of the required period, only in case the student had taken the entire course required by the law school, and had graduated. Under early advanced standing rules, how- ever, the schools allowed time spent in other schools and in offices to be counted as part of their own residential period, leading to their own degree. This practice militated against a restriction of the privilege, and the American Bar Association resolution of 1881, recommending the counting of time spent in a law school, was unfortunately phrased, in this as in other respects, in too general terms.^ Occasionally to-day ap- plicants who come from law schools situated outside of the state are exempted from requirements of local study only in case they are grad- uates.^ So far, however, as local schools are concerned, it is the invari- able rule that a partially completed course of study will be accepted. The possession of a law school degree is no longer invoked to justify the exemption of school-trained students, in whole or in part, from the traditional apprenticeship period under an attorney. This exemption is accorded for any amount of time spent in a law school; the degree constitutes the basis not for this privilege, but — in some states — for 1 Page 286. 2 "The time spent in any chartered and properly conducted law school ought to be counted in any state as an equivalent to the same time spent in an attorney's office in such state in computing the period of study prescribed for applicants for admission to the Bar." 5 Owing to the special peculiarities of Louisiana law, it was many years before any credit was allowed here for study pursued outside the state. At present, however, graduates of out-of-state schools are permitted to take the examination. In Con- necticut such graduates are now exempted from the requirement, otherwise imposed, of local study during at least one year. Compare the New York rule of 1878-82, page 260, note 2. NEW YORK CONTROVERSY 259 the broader one of exemption from the bar examination also. While this result may be regarded as a victory for the schools as against the profession, it is a victory that works no benefit to either. Students who fail in their school examinations are tempted to abandon the institu- tion in favor of the easier attorney's-office and bar-examination road. The bar examiners are compelled to read the papers of young men whose training has consisted of uncoordinated scraps. Whatever may be thought as to the adequacy of a complete law school course, as a prepa- ration for admission to the bar, there ought not to be two opinions as to the inadequacy of an uncompleted or unsuccessful law school course, pieced out by unsupervised work in an office or in private study.^ 3. Netv York Controversy The varying points of view of the schools and of the profession, and the danger that in the attempt at reconciliation a compromise may be effected that is harmful to both, were strikingly illustrated in New York, where an unusually strong law school early came into conflict with an unusually strong bar association. The profession here took a position in regard to the counting of law school study which greatly intensified the schools' desire to be free from all burdensome regula- tions. Theodore D wight certainly had some justification for organizing, as he did, a legislative machine to ensure retention of his Columbia diploma privilege when the Court of Appeals, having been given power by the legislature to determine the educational qualifications of appli- cants who were obliged to take the regular bar examination, ruled in 1871 that such applicants must have studied law three years, towards which only one year's study in Harvard, Yale or a local school con- 1 The following is a typical and by no means extreme instance of what occurs under current bar admission rules. At the end of two years irregular attendance at a cer- tain western state university law school, a student had failed to pass examinations in about one-fourth of his first-year work, half of the work of the next semester, and all the work of the final semester. He was eventually expelled from the school. He was entitled, however, to certificates showing that he had completed one and two- thirds years of the three years study required for admission to the bar. Often the inherent weakness of the rule is accentuated by lax administration. The following passage is quoted from a report made to the Carnegie Foundation concern- ing admission to the bar in a southern state': "At the Febniary, 19U, examination an applicant, in conversation, admitted that he had studied law only four months, part of the time at the state university, part of the time with a lawyer and part of the time by himself. He also stated that his father, a lawyer, would not give him a false certificate of two years law study and that he had to go and get his certificate elsewhere. He passed the examination." For recent efforts to remedy this evil in New York, see below, page 363. 260 ADJUSTMENT OF BAR ADMISSION RULES nected with a college or university might be counted.'' In 1877 the more reasonable rule was adopted that only a single year's clerkship would be required, in addition to time spent in a law school. This law school must, however, be a local one. It was this absolute exclusion of out-of-state schools from any participation in the training of New York lawyers — a discrimination the more marked because the local schools still preserved, by legislative favor, the diploma privilege — that was the ostensible occasion of Langdell's attack upon the theory of inde- pendent bar examinations, and all "so-called efforts to raise the stand- ard of legal education."^ The primary reason for the disti-ust of law schools evinced in these rules was a growing feeling in the profession that the schools were weak on the side of practice. In the case of a small local school, enough might be done along this line to satisfy the not over-exigent practitioners. Harvard and Columbia, however, were not simply weak on this side. They were deliberately and avowedly neglecting this phase of legal education, in favor of other branches of the law that they considered of greater importance. In spite of Langdell's assertion^ that there was no settled tradition of law training, there was among the older mem- bers of the bar a very well-defined tradition of close cooperation be- tween law school and office. These gentlemen believed that the large national schools, in departing from this tradition, were going hopelessly astray, and accordingly they bent their energies to remedying this sit- uation. One form that their activities took was the founding of new practical law schools, whereby daily half-and-half theoretical and office training might be given — the English theory of legal education, which Benjamin F. Butler had long before this tried to introduce in the un- successful experiment at New York University.* Another form was the adoption of the bar admission rules just described, designed — in imi- 1 This extraordinarily niggardly recognition of the law schools may have been an act of retaliation by the Court for not being given full control by the legislature. It rep- resented, however, the traditional recognition accorded to law school work, in this state, prior to the abolition of the prescribed period in 1846. Compare page 244. 2 The president of the University also protested, and the discrimination was removed the following year, except that, for the moment, mere time spent in an out-of-state law school would not be credited. In addition to the one-year clerkship, graduation from a two-year school which required a public examination for its degree was neces- sary. Since 1882 the usual custom of counting scraps of time in any school has been followed. 3 See below, page 269. * As to this line of development in law schools, see below, pages 395, 399. NEW YORK CONTROVERSY 26l tation of similar provisions that had survived in states where law school influence was weak*^ — to ensure a supplementary clerkship of at least a given amount. It is significant that no corresponding minimum of law school work was named, nor any sequence required for the two types of training. The reform to which Lewis L. Delafield, however, himself a Columbia College graduate, devoted himself during seven strenuous years in New York ^ went farther than this. It was nothing less than a revival, in slightly modified form, of the original Harvard idea. He wished grad- uation from a law school to be followed by an obligatory year's clerk- ship, thus providing a combination of theoretical and practical work and at the same time doing away with the vicious system of adding to- gether scraps of both types of training. To this end it was necessary to repeal the privilege enjoyed by the New York schools of passing their graduates directly into practice. Incidentally, Delafield sharply attacked, on principle, the exemption of these graduates from the reg- ular bar examination, but it is evidence of how strongly he felt in re- gard to his supplementary clerkship year that he was willing to waive his objections to this examination privilege for the sake of securing his major reform. It is interesting to note also that Langdell, although he agreed with the position assumed by the judges of the New York Su- preme Court,^ and later by the American Bar Association, that all that was requisite was that law school study might be freely credited on a prescribed and reasonably long term of pupilage, was willing to accept Delafield's plan in this form.* Had these two gentlemen, representing two quite different interests, been allowed to have their way, this not unreasonable compromise might have been effected. The New York sys- tem would then have resembled somewhat the situation that obtained in medical education.* 1 See above, page 247. 2 1875-82. See Report of the Committee on Legal Education and Admissions to the Bar, made to the Association of the Bar of the City of Neio York, 1876, and 3-6 New York State Bar Association Reports (1879-82), for an account of Delafield's great fight. ' In a petition addressed to the legislature, 1875. Under the new statute they adminis- tered the examinations under rules prescribed by the Court of Appeals. * Export, pp. 92, 95. In one important respect, as will be shown in the next section, Langdell disagreed with the judges. He did not favor a stringent bar examination. 5 In his report to the Bar Association, Delafield adduced as a precedent the rules of the Philadelphia Court of Common Pleas. Unluckily this court introduced the diploma privilege, admitting directly into practice, the same year. In an address delivered be- fore the American Social Science Association the following year, Delafield accord- ingly invoked the medical analogy: " No person should be admitted to the bar who 262 ADJUSTMENT OF BAR ADMISSION RULES Under the original three-year rule, there would seem to have been no reason why Dwight also, with his two-year school, should not have ac- cepted the requirement of a supplementary year of clerkship, except on the theory, later advanced, that two years in a law school is a fair equiv- alent of three years elsewhere. In 1875, however, the Court of Appeals inconsiderately reduced the period to two years, in the case of college graduates who had studied jurisprudence and legal history.^ Since one of these two years must be spent in a law office, the practical effect of abolishing Dwight's diploma privilege would have been to tempt col- lege graduates to desert his school after a single year. He accordingly rejected the proposition and there ensued a bitter fight, in which Dela- field had the support of the State Bar Association and the Court of Appeals, while Dwight, through his graduates, was strong in the legis- lature. The continuance of the diploma privileges enjoyed by the New York schools became the principal issue. In 1876 Delafield induced the legislature to abolish these privileges, but Dwight at once secured a sus- pension of the act for one year, and this suspension was annually re- newed, to the accompaniment of charges of bad faith by Delafield, who then tried another line of attack. He secured the exclusion of Colum- bia law school graduates by one court, on the ground that they had not studied during the full period required by the act conferring the di- ploma privilege — only to see these same students secure admission to practice from another court. When it finally became clear that the di- ploma privilege could iio longer be defended successfully befoi'e the legislature, Dwight's supporters made a last stand on the proposition of a shorter period of study for law school graduates than for other applicants. Ostensibly, Delafield won this final battle also. The legislature left the whole matter to the Court of Appeals. By what has all the outward earmarks of a " deal," however, the Court promulgated a wretched com- promise. Law school students (whether graduating or not) could count time spent in the school for all except a year of the prescribed period. has not acquired some knowledge of the practical application of law in an oflSce. The analogy between the physician and the lawyer is perfect in this respect. A medical school which provided neither hospital nor clinical instruction would be held up to ridicule." Conditions of Admissions to the Bar. Paper read before the Social Science Association at Saratoga, 1876, p. 11. ^ It has been stated that the purpose of this rule, broadened two years later to cover all college graduates, was to facilitate the admission of a relative of one of the judges. Judge Noah Davis, in a note appended to Delaflield's address before the Social Science Association, stated that the rule was made "to meet an existing exigency." ADMISSION BY EXAMINATION OR DIPLOMA 263 Any amount of law school study, however small, might be counted, and in case the maximum time was spent in a school the balance need not be made up, as under Delafield's original plan, by a subsequent and consecutive clerkship of a year. Instead, it might be made up by twelve months office work pursued at any time, notably — to the extent of not more than three months in any one calendar year — during law school vacations. Thus what the legislature had refused to do openly, the Court virtually did in an underhand way. A substantial saving of elapsed period of study was effected for law school as compared with straight office students. Delafield had secured the abolition of the diploma privi- lege, but his original design of a complete theoretical law school course, supplemented by a year's preictical office work, had degenerated, under school opposition, into the combination of scraps already familiar in other states. And the contest had been so heated that at its conclusion all concerned were tired of the subject. New York rested fourteen years before another move was made to better its admission system. Since then some progress has been made. The supplementary year of office work must now be continuous. Certain classes of applicants, however, need not sei've this office year. And the cardinal evil of the 1882 rules — the privilege of counting small fragments of time spent in a law school toward the total period prescribed by the state — still persists, despite efforts made by the State Board of Bar Examiners to remedy it.^ 4. Practitioners' Examinations versus Admission on Diploma We have seen how the demand made by practitioners for greater at- tention to the practical training of applicants was urged against the opposition of schoolmen who wished the entire period of preparation to be spent in their own schools; and how the principal result of the controversy has been to throw the rules prescribing a definite period of preparation into a confusion that injures the schools, and yet has little value in accomplishing the objects of the practitioners. This same emphasis laid by practitioners upon practice was a factor in stirring up their opposition to the diploma privilege. Broader issues, however, 1 The failure of the Board to gain the support of the Court may be ascribed to the fact that they have recommended, not merely that no credit shall be given except for a suc- cessfully completed law course, but that all applicants must be thus qualified. It is open to grave question whether the state should delegate to private institutions the power absolutely to exclude applicants from admission to the bar. 264 ADJUSTMENT OF BAR ADMISSION RULES were here involved. The new profession was beginning to feel its re- sponsibility for legal education in general. "Examination" was a word to conjure with in the years immediately following the Civil War, as, indeed, to some extent it still is. Both in the universities and in gov- ernmental administration, written tests were thought by many to be infallible means of determining proficiency. Very naturally the practi- tioners absorbed the idea that the strengthening of their own bar ex- aminations provided the weapon by which they might force inferior schools to conform to their own higher standards. To this end it was clearly necessary to curtail the privilege claimed by several schools of having their graduates exempted from the examinations. On the other hand, this attitude on the part of the profession made the diploma privilege even more important to the schools than it had been before. If they could not secure it, then they were roused to avert in other ways the danger that threatened their free development. Thus, Har- vard did not demand the diploma privilege, but after Langdell's pro- test^it did secure from Massachusetts bar examiners a favored treatment of law school graduates, which survives to some extent to the present day.^ The relative novelty of examinations conducted by the school itself made it sometimes possible to devise a system which, as already at Hamilton, gave the admitting authorities the shadow, but hardly the substance, of control.' In the main, however, there was a simple 1 See above, page 355. 2 Francis L. Wellman, writing in 1881, says : " In Massachusetts, in certain counties, the law school diploma seems to give rise to a legal presumption in favor of the can- didate." (15 Ariwrkan Law Revww, 295.) This arrangement, which has proved sufficient to satisfy Harvard, is a matter of customary board procedure rather than formal rule. It resembles the Virginia cus- tom (page 252) of being easy on University of Virginia graduates — a tradition which not only continued in Virginia itself, but, according to Wellman's tabular view of bar admission requirements, made a diploma from the new West Virginia University law school equivalent to a license, before this privilege was formally conferred by statute. Doubtless in many other jurisdictions graduates of local schools, whether of law or of medicine, were and are similarly favored in practice. ' At the University of Iowa Hammond introduced, about 1873, in obvious imitation of the privilege enjoyed by the Yale medical school, an arrangement whereby the school examination, admitting into practice, was conducted by a committee appointed jointly by the University and the Supreme Court. At Yale, between 1880 and 1890, the school examination admitting into practice was conducted under the supervision of a committee appointed by the Supreme Court. Compare, as to Hamilton, page 251. Domestic and foreign experience both show that under these circumstances the visiting outsiders are submerged in the resident faculty, and that this is virtually equivalent to the full diploma privilege. Guests of a school have to be courteous. Crede experto. ADMISSION BY EXAMINATION OR DIPLOMA 265 conflict between the only two methods of determining the proficiency of law school students that had then — or that have since then — been devised. These were, on the one hand, to leave the determination to the authorities of the individual school, or, on the other hand, to entrust it to a body of judges or practitioners, supposed to be competent to con- duct a general and uniform test without reference to the type of train- ing favored by particular schools. And since there were unanswerable objections to either plan, the one finally adopted by any state repre- sented rather a defeat for the opposing party than an inherently satis- factory arrangement. Prior to 1890 the schools had on the whole the best of the contro- versy. New York, in which the working of the diploma privilege had been criticized at the very first meeting of the New York City Bar As- sociation, abolished it, as we have seen, in 1882.^ This was the only state, however, in which any exemption established prior to 1870 ^ was done away with during the next twenty years.'On the other hand, Geor- gia, already granting the privilege to State University law graduates, extended it to Mercer in 1875 and to Emory in 1888. In Tennessee, under the statute granting it to any law school in the state, three new schools arose before 1890. In jurisdictions where it had not previously appeared, it was sometimes introduced only to be abolished and then again restored.* The net result was to increase the number of exempted 1 Page 262. 2 See above, page 352. 5 Michigan, in 1881, repealed the statute specifically forbidding the courts to examine state university graduates ; it may be presumed, however, that a Circuit Court could be found willing to continue the privilege, which in 1895 was again placed upon a statutory basis. Oregon abolished in 1880 its court rule exempting from its examina- tion graduates of out-of-state schools exempted in their own states. * The following jurisdictions introduced the privilege for the first time during this period : District of Columbia, at least for Georgetown, in 1870 (Shea, J. G., Memorial of the First Century of Georgetown College, 1891, p. 341). AboHshed, probably 1875. Maryland (University of Maryland), 1872. Converted into evidence of prescribed period, 1876. Restored, 1888. Connecticut (Yale), 1872. School examination conducted under supervision of a committee appointed by the Superior Court, 1880. Privilege aboUshed, 1890. Kentucky (University of Louisville), 1873 ; (Transylvania), 1874. Iowa (State University), by statute, 1873. The joint examination described on the preceding page may have antedated this code provision. Converted into special exam- ination held at the school (as in Ohio, 1856-90, see page 251), 1884. Missouri (Washington University and University of Missouri), 1874. Pennsylvania (University of Pennsylvania), 1875. The exemption did not cover the preliminary examination on general education. Abolished by 1881. Restored (grad- 266 ADJUSTMENT OF BAR ADMISSION RULES schools from nine schools in seven states in 1870 to twenty-six schools in sixteen states in 1890. After 1890 the American Bar Association, which had skilfully dodged the issue in a resolution adopted in 1881,' declared against the diploma privilege in 1892, and, more explicitly, in 1908. At the same time, one of its inherent evils — its liability to spread from one school to all the schools in the state ^ — brought its own corrective with it; in several states schools that have found they could not monopolize the privilege have taken the lead in asking for its abolition. Many schools, however, have clung tenaciously to this means of protecting themselves, especially where the general bar admission requirements have been lax. It was not until 1917, when the numerous California and Minnesota schools lost their exemption privilege, that a definite reaction set in. And even at this date twenty-two schools in fifteen states, of which a majority were in the South, continued to be thus privileged. In this controversy, the arguments advanced against the exemption of law school graduates from the regular bar examinations can be passed over briefly, for the reason that their force is generally recognized to- day. There was in the first place the argument on principle, that the state ought not to lose control over so important a part of its functions as admission to the bar. In the language of Delafield, "examinations uates of the fuU three-year course who had passed the Board preUminary examina- tion and also an examination in Latin), 1889. Illinois (any local institution whose course covered two years of thirty-six weeks), 1875. Three law schools at this date; six by 1890. Alabama (University), 1876. California (Hastings), 1878. The privilege was subject to the right of the Chief Jus- tice to order an examination. South Carolina (University), 1886. West Virginia (University), by statute, 1887. Minnesota (University), 1889. 1 "That the diploma granted to those pursuing' successfully the studies of such a course [one normally covering three years] and passing such full and fair written and oral examination as may be satisfactory both to the faculty of the school and to the proper authorities of the state, ought to entitle the recipient to admission to the Bar as an attorney at law." It was clear from the discussion on the floor, this and the preceding year, that it was impossible to put through a resolution that meant anything. 2 It was rumored recently that a certain Supreme Court judge of a western state, who was shortly to come up for reelection, first induced his colleagues to grant the diploma privilege to a certain school on the ground that his presence on the faculty was evi- dence of its high standards ; then induced the Court to extend the privilege to two other schools, on the ground that otherwise he would be charged with discriminat- ing in favor of his own institution. ADMISSION BY EXAMINATION OR DIPLOMA 267 for public office should be conducted by public officers."^ The retort sometimes made that state university law schools, at least, may be con- sidered organs of the state, is on the whole a quibble. The decisive argu- ment, however, was and is that the absence of responsibility to some external authority is bad for the schools themselves. This fact, which Minor had early recognized,^ is patent to any one who ha^ visited a large number of law schools. It is apparent even in schools which, because they have virtually a local monopoly of legal education, are under no pressure to reduce their standards. It takes here the form of a certain listlessness. The teachers are tempted to sink into that condition of un- inspired placidity which is only too characteristic of many American college professors. That law teachers, as a class, move on a higher plane of efficiency than their colleagues in the colleges of liberal arts is un- doubtedly attributable in part to their greater measure of accounta- bility. When to this fact is added the further one that it is difficult to prevent the diploma privilege, once granted to a good school, from being extended to any school that may subsequently be started in the state, complete demoralization of the bar is threatened. There can be little question but that Delafield was correct in describing these privi- leges in New York in his own day as affording "a short cut to the bar through golden gates." There can be no question but that in our own day they have been scandalously abused in several states. Except as a tentative an'angement, pending the time when a satisfactory system can be devised, the diploma privilege cannot be defended. Of more interest to-day, because based on truths that are less com- monly accepted, were the arguments advanced by schoolmen against entrusting the bar examining function to an independent body of prac- titioners. Dwight, writing in 1889,^ explained the reasons which had induced his original appeal to the legislature thirty years before, as follows : "It was determined at an early day that it was wise to confine the attention of the students mainly to the principles of the law, paying comparatively little attention to the details of local prac- tice. There was, however, a formidable obstacle in the way of this course. The examiners appointed by the court practically paid no attention to legal principles. ... If one Board favored theoretical study, the next adopted a different view and confined all their en- quiries to trivial and useless details." ^Report of the Committee on Ad/missions to the Bar, p. 33. - See above, page 250. ^ 1 Chreen Bag, 141. 268 ADJUSTMENT OF BAR ADMISSION RULES Referring to the situation at the time of writing, when he had lost the diploma privilege, he added: "The court examinations are more reasonable, though, be it said with respect, there is still in some quarters room for improve- ment." One of Dwight's successors in the Columbia deanship has expressed similar views in regard to the neglect of legal principles, the over- emphasis of trivial details, the general room for improvement in more recent New York bar examinations. There is a continuous tradition of friction between the Columbia law school authorities and the indepen- dent examining authorities of the state. The controversy has often been extended to include other schools as well. The rights and wrongs of the discussion are of less importance, in this connection, than is the evi- dent fact that in the leading state in the Union, for whatever reason, and whoever may be to blame, the examiners and certain of the law schools tend to pursue virtually antagonistic ends. The system has bred turmoil instead of cooperation in the advancement of legal education. Such is the argument of experience, which of course is not conclu- sive. Vigorous controversy is after all more healthy than supine ac- quiescence, and it is open to either controversialist to declare that the remedying of some minor defect will make the system work well — work, in other words, to produce results that wiU satisfy the victor. Langdell, however, in his protest already quoted, went to the heart of the matter. He advanced the following powerful argument to show, not that existing bar examinations were bad, but that there was that in the nature of American law which would always prevent them from being good, unless they were keyed to some particular course of study or instruction. He first distinguishes American law from other branches of knowledge, which, he implies, lend themselves more readily to ex- amination methods. "Law has not the demonstrative certainty of mathematics ; nor does one's knowledge of it admit as many simple and easy tests, as in the case of a dead or foreign language ; nor does it acknow- ledge truth as its ultimate test and standard, like natural science; nor is our law embodied in a written text, which is to be studied and expounded, as is the case with the Roman law and with some foreign systems." Of especial significance, in connection with the task the Harvard law ADMISSION BY EXAMINATION OR DIPLOMA 269 school was attempting to perform for American law, and for which it demanded only "a free field and no favors," is the next sentence: "Finally, our law has not any long established and generally recognized traditions, which wiU indicate to the examiner what his examination ought to be, and to the student what it wiU be; and the whole field of law is so extensive, and so much of it is unfit for the purpose of systematic study and instruction, that one who attempts to cultivate the whole of it indiscriminately will not cul- tivate any of it to much purpose." Hence, he concludes, the examiner who examines without reference to any particular course of study or instruction "... can have no other standard than the state of his own knowledge; and the success of the persons examined may there- fore depend less upon what they know than upon what the ex- aminer Knows. It is impossible that such examinations should be at once rigorous and just. They must admit the undeserving or reject the. deserving; and in the long run they will be sure to do the former." In this last sentence LangdeU revealed himself a seer. The reason why friction between schoolmen and examining boards has not de- veloped oftener than it has is that few boards, outside of New York, have had the backbone to stand up for a "tradition of the law" — in the judgment of the present writer a valuable but one-sided tradition of the law — differing from a perhaps even more valuable, but equally incomplete, tradition that powerful law schools seek to establish. The sure way of avoiding trouble, when faced with the impossible task of devising a uniform test for students trained in divers ways,^ is to let everybody through. A rejected applicant may have influential con- nections who can bring pressure to bear upon the Board, but no one 1 Langdell, as we have seen (page 93), argued in favor of a recognized distinction be- tween counsellors or advocates and attorneys, on the basis of their different methods of training. After it was clear, however, that New England bar examinations were to be administered in such a way that Harvard law school graduates would not be penalized, he did not press the point. He doubtless considered that the gradually rec- ognized professional distinction between Harvard law school graduates and products of other systems was sufficient for all practical purposes. To the practitioners, on the other hand, uniformity of standards was a fetish, and in particular any distinction between school-trained and other lawyers the root of all evil. Compare Delafield : "There should be one standard and one rule, applicable to all alike " {Report, p. 28), and Wellman : " So long as the law school privilege continue in any state, there can be no uniform standard of knowledge required throughout that state ; and this we have seen to be the very cornerstone of a proper system of legal education." (15 American Law Review, 321.) 270 ADJUSTMENT OF BAR ADM^^SION RULES is specially interested in criticizing it for undue leniency. The in terrorem effect of an examination will always remain, and in any fair statement of the case must not be overlooked. But except for this, independently conducted bar examinations have rarely amounted to much. States which have abolished the diploma privilege have the doctrinaire satis- faction of being theoretically paramount to the schools, but their ex- aminations are of little avail in helping or forcing the schools to main- tain high standards.* To sum up the controversy in regard to this matter of examinations for law school graduates: It is clearer to us now than it could have been to interested controversialists of that day, that both parties were right in attacking the position assumed by their opponents, and that both were wrong in regarding their own as the only possible alterna- tive. The suggestion that local bar examiners and certain national law schools might be pursuing different ends, each valuable in itself, was only rarely and hesitantly put forth by the schools, which prevailingly sought to defend their standards against interference, on the ground that academic freedom constituted the best possible means of prepara- tion for an undivided profession. The propriety of double standards, on any grounds at all, was indignantly repudiated by the profession. Still another possibility — that even in an undivided profession the ex- amining authority might be located neither in the individual school nor in an independent practitioners' board, but in a general examining board maintained by an association of schools — occurred to no one. Instead, one of the two obvious alternatives was adopted, with about equally unfortunate results. There is little to choose, on principle, be- tween a law school that is responsible only to itself, and a board of examiners that pretends to greater powers of discrimination than it possesses; and in their practical working out there is not much differ- ence between the two systems. 1 A subordinate reason for the prevailing inadequacy of bar examinations is that the examiners, left by the schools to devise their own methods, are rarely able to con- struct a system that an expert crammer cannot " beat." For the rapid degradation of the Massachusetts board examinations, see 14 American Law Sevieio (1880), 76 ; and note the English development of cram schools for solicitors' and civil service examinations. PART VI EFFORTS TO BROADEN THE TRAINING OF LAWYERS DURING THE FIRST QUARTER CENTURY AFTER THE CIVIL WAR CHAPTER XXIII PURPOSE AND CONTENT OF LEGAL EDUCATION 1. Vitality of Legal Education between 1865 and 1890 IN spite of the blind formalism and inglorious compromises which have been described, the first quarter century after the Civil War was a period of vital growth for law schools. It contrasted sharply both with the preceding and with the following generation. The technical changes in our admission methods, length of degree course and recog- nition of school work by the state, however ill-advised in some of their details, sprang from a general desire, on the part of both practitioners and schoolmen, to make legal education better than it had been before; and while there was much disagreement as to what reforms were most needed, and reformers, as usual, got in one another's way, substantial progress was none the less made in several directions. Looking back at this period, we can see that if there had been some central regulating influence, in place of the well-meaning but sadly ineffective agglomera- tion of bar associations, the progress would have been more rapid. Yet even so, in the long run it has probably been an advantage to the schools to be permitted to develop, as it were, spontaneously. The tra- dition of a standardized unitaiy profession, monopolizing all branches of legal practice, was so firmly implanted in professional thought, that an inelastic educational system, artificially simplified like the German, instead of diversified like the English and French, might have arisen to plague us in later years. As it was, although every law school con- sidered its neighbor as its natural competitor in pursuit of a common aim, and regarded any difference from its own policy as a difference in merit rather than a difference in type, no single institution was strong enough to impose its views upon the rest. Each developed along the path that seemed best to it. Formalism still operated, it is true, even among the schools. Devices invented by one institution were often adopted by another as parts of the formula of a perfect law school, without much thought as to whether they were appropriate to its own particular circumstances and fundamental ideals. Yet sometimes they were appropriate. Each school profited more by the results of free initiative among all than it would have gained from the a priori principles of a group of professional lead- ers. And when perfectly foolish things were attempted — such as, for 274 BROADENING THE TRAINING instance, to use an illustration belonging properly to a later period, the introduction of the Harvard case method into night schools — the resultant uniformity was necessarily more ostensible than real. The schools, as they endeavored to improve themselves, perforce grew apart. In place of the prevailingly uniform feebleness that had characterized all schools before the wai', a vigorous differentiation began to appear. This process had not been carried far enough by 1890 to make it possi- ble to classify the schools in any satisfactory way. Harvard, as we shall see, had come to represent at this date a pretty clearly defined type of its own. Among the other schools, efforts to revive office connections, or to cater to self-supporting students, or to broaden the curriculum produced as yet shifts of emphasis rather than sharp dividing lines. Independent traditions were being started, however, some of which would become accentuated and crystallized during the generation be- tween 1890 and the German War. The inherent tendency of human institutions to become difi^erent from one another was proving stronger than the conscious effort to make them more closely alike. What must have seemed to many of the participants a losing fight to establish their particular conception of legal education as the orthodox one was really preparing the ground for recognition of the truth that a single standard type of law school does not and should not exist — that we have, and need, law schools of entirely different types, each contribut- ing in its own way to the development of radically different types of lawyers. The obvious deficiencies of legal education prior to the Civil War may be conveniently grouped under three main heads : lack of breadth, lack of depth, lack of force. The current had been narrow, shallow and sluggish. Enough has already been said as to the change that occurred in this last respect. In New York, in particular, we have seen^ that the increased head of pressure emanating from the practitioners, and greatly swelling their tributary to the gentle law school stream, produced a torrent that was both turbulent and muddy. It remains to enquire in what respects legal education stood most manifestly in need of improve- ment as regards its breadth and its depth, and what steps, more success- ful than those already described, were taken to remedy these failings. And first, as to efforts made to broaden the course of training. Pages 259-263. BREADTH VERSUS DEPTH 275 2. Breadth versus Depth. General Discussion By the term "curriculum," as used in this chapter, is meant the entire course of formal training received by the prospective lawyer, whether in the law school, the law office, the college or the lower schools. By the term " breadth," as applied to this training, is meant the extent to which the manifold subjects of study, or phases of training, that might conceivably be included in the curriculum, are included as a matter of fact. Care must be taken not to identify breadth with merit. Our system of legal education operated under conditions over which it had little control. Within a limited number of years it had to accomplish an extremely difficult task — that of initiating the student into the mys- teries of a huge and ill-digested mass of law, to be applied by him under complicated and arbitrary rules and customs of procedure. Under these conditions it was a question of judgment where to draw the line be- tween, on the one hand, a course of training so broad as to be superficial and useless for any practical purpose, however remote, and, on the other hand, a more thorough but lopsided course which should omit essential features. This dilemma still confronts us and cannot be escaped merely by an increase in the preparatory work demanded of the student. For just as in our large cities the building of new arteries of transportation is at once overtaken by the growth of population and the congestion of traffic is as great as before, so the pressure upon schools and students defies all attempts to provide other than temporary relief. The length- ening of the law school or bar admission period since 1870 has in no way kept pace with the growth of the law that has to be mastered. While a stiU further extension of the preparatory period, coupled with specialization on the part of the schools, will reduce the tension to some extent, and ultimately, it is to be hoped, the law itself can be reduced to more general and hence more easily mastered terms, it will be many years before any law school faculty or any board of bar ex- aminers or court can defend its curriculum as an ideal one. All that can be maintained is that it is the best that can be devised under most unfavorable conditions. This situation makes for a great variety of curricula as between school and school. Not merely have the conflicting claims of breadth and of thoroughness been reconciled by different schools in difl^erent ways, but the temperamentally broad-minded, as distinguished from thorough-minded, teachers have by no means been in accord among themselves. Much difference of opinion developed as to what particu- 276 BROADENING THE TRAINING lar broadenings of the curriculum might most profitably be attempted, in view of the fact that time devoted to any one desirable feature neces- sarily reduced the time available for some other. While noting these disagreements, however, the reader must be careful not to exaggerate their importance. Two facts should be borne in mind. One is that the task of coping with the volume of judicial decisions was now definitely established as the main function of every law school. This was accepted by all, whether they brought their students into direct contact with the cases or whether they simplified the instruction, both for them- selves and for the class, by relying upon textbooks or lectures. The question at issue was not whether the school should depart from what had become its primary mission, but whether, to some relatively small extent, it should do more than this, and if so, what. And the second fact is that, however jealously a faculty might guard its students against unwise diffusion of effort, there was pretty general agreement that the extreme narrowness of the ante-bellum curriculum could not be de- fended. The old unregulated competition between school and school, be- tween school and office, between even a law school and the college to which it was attached, had led the schools to attempt only the satis- faction of the practitioners' obvious and immediate needs. Only the financial weaklings were content to remain'in this position of letting the ignorant dictate to them the requirements for their degree. While all schools, therefore, continued to devote themselves mainly to case law, there was also a general tendency to broaden the student's education. 3. The Three Component Parts of an Ideally Complete Preparation : Practical Training, Theoretical Knofvledge of the Law, General Education A brief analysis of the fundamental problem confronting the schools will reveal the many different directions in which the curriculum was capable of expansion and will throw light upon the varying policies pursued. The overwhelming majority of students, then as now, fre- quented law schools, and came up for bar examinations, with the inten- tion of actually practicing law in some particular jurisdiction. A few cherished the intention of becoming teachers or scholars, or studied law as an elegant accomplishment, or as an aid in administering their private fortunes, or as an introduction to a political career, or as an an- chor to windward in case no better opportunity of earning a livelihood presented itself. But these were quite submerged in the general mass. The THREE COMPONENTS OF LEGAL EDUCATION 277 main purpose for which all professional law schools existed was to train practitioners of private law. They were successful in securing and hold- ing students only in so far as they could show that the training rep- resented by their degree was of value for this purpose. This being the end for which they existed, the problem was then to devise the appro- priate means. The schools were not in a position to establish the com- pletion of their course as an end in itself. They must, under penalty of their own extinction, furnish the future practitioner, if not with everything he would like to have, at least with more than he could secure in other ways. If they could not satisfy all his demands, they must at least convince him that such portions of an ideally complete training as they failed to provide were non-essentials that he could ignore or make up in other ways, and that such training as they did provide was directly related to his own object in attending the law school. All beginners naturally tend to overestimate the importance of training that obviously and immediately assists them in their chosen work, and to question the utility of studies whose practical application is more remote. It is the besetting danger of all institutionalized educa- tion that its authorities, on the contrary, are tempted to become inter- ested in the remote at the expense of the near, and thus to create a system of education that is out of touch with realities. An absolutely complete course of training would, of course, include every subject and every phase of training that could be justified fi'om either of these points of view, as tending in any way to be of value to the student. A system of professional legal education constructed in conformity with this impossible ideal would include comprehensive training under the following three heads, arranged in the order in which they naturally appeal to the uninstructed beginner. First, the training must be, primarily and fundamentally, a training in and for legal practice as such, and not a training that provides the student merely with theoretical acquisitions that he may be unable to turn to practical account. Its object rnust be to develop skill or disci- pline, as distinguished from information or knowledge. Second, it must give the student such a mastery of theoretical legal knowledge as may ultimately in any way assist him to attain the object in view. And to this end, not merely must a large part of the law that he intends to practice be acquired by him first as a body of systema- tized legal doctrines rather than picked up in a practical or empirical way, but law itself must not be narrowly defined. Borderland and al- 278 BROADENING THE TRAINING lied studies of a relatively non-technical nature, such as jurisprudence and government, must be included. Third, it must include education or training in all such additional sciences or arts as cannot be brought within any definition of law, how- ever broad, and yet may be helpful to the prospective lawyer in any way. Here belong not merely medicine for use in personal injury cases, science for use in patent cases, and any subject of study that promotes the accuracy of reasoning and the effectiveness of expression that are so essential in the practice of the law. Here belong also studies that have no practical application to a lawyer's professional work and yet may contribute to make of him a better citizen and a happier individual. These three phases are or may be involved in the system of training that is instituted for any elaborated art or profession. The order in which the student enters upon them is the reverse of the order in which they are stated here. While he is naturally most interested in those por- tions of his possible education that stand nearest to the end he has in view, the school persuades him to precede these with studies of more remote utility. The problem that confronts the legal educator in de- vising his curriculum is to decide, in the first place, to what extent it is advisable even to try to divert students from their natural bent. To this end he must determine, both how much theoretical learning ought to be shoved in ahead of practice, and how much of this learning should be of a technical and how much of a general sort. And then, when he has decided what he would like to do, he has the further unpleasant task of adapting his desires to conditions as they are, and deciding which portions of his ideal curriculum will have to be slurred over or omitted. There are those who refuse to recognize the existence of these three distinct phases of vocational education. They contend, with some plausi- bility, that there is no substantial justification for thus isolating theory as an independent and preliminary body of learning, to be subsequently "applied"- — that the theory of any art is merely an academic sediment, deposited when the educational waters are standing still — that when they are in vigorous movement theory is wholly absorbed in practice, and a student does not try to know, but only to do — in short, that it is a totally false analysis of educational processes to allow to theory any place in a vocational curriculum. Even if this were a true statement of the problem from the idealistic point of view, theory occupies, as a mat- ter of fact, the principal part of existing curricula. It has to be reckoned with, even if it ought to be abolished. It seems more probable that it is THREE COMPONENTS OF LEGAL EDUCATION 279 there because it has to be — that just as out of legal procedure the con- cept of a substantive law, of which procedure is only the application, was slowly evolved, so any system of training that has reached such a degree of elaboi'ateness as properly to be conducted by an institution, instead of by a master of the craft, must necessarily contain an element of theory, divorced from practice. The kernel of truth, in the contention that the teaching of the theory of an intricate art is a mere academic abuse, is that the attempt to theorize on the principles which underlie a practitioner's manifold activities may easily be carried too far. To the extent that it is practicable to train a student directly to do things, it is certainly futile to set up systematic principles for him to learn. It is always a roundabout and cumbersome method of securing the practical expertness we have in view to force him to make deductive applications of laboriously mastered knowledge. So far from attempting to give him as much as possible in theoretical form, we ought to reduce this part of his education to the smallest possible proportions. Unfortunately, how- ever, in a difficult and complicated profession, much of the training has to consist of theory, or both insti-uctor and studentwill be lost in a hope- less maze. While, therefore, the theoretical element in education is not sharply distinguished from practical training as an essential foundation upon which the other rests — while it should be pictured rather as a body of learning that gradually assuriies form within the educational process as a whole — while its outline, in short, is necessarily vague and fluctuating — it has none the less reality on this account. Similarly, the precise line of division between that part of this theoretical knowledge which is useful only to lawyers and that which is useful to others as well — between technical and general knowledge, in other words — is also not always easy to draw. Human phenomena are not distinguished from one another with the logical severity of a diagram. This, however, is no reason for denying distinctions that are derived from logically dis- tinguishable starting-points. Probably from the idealistic point of view, and certainly in our existing scheme of educational organization, prac- tical training, technical knowledge and general education each has its diiFerent subordinate aim, and each its appropriate machinery for ful- filling this aim. All have their place in a fully developed curriculum, de- signed to prepare for an elaborate art or profession. In the case of a simple ajid easily mastered vocation, so much ma- chinery is not necessary. For an extremely simple occupation only prac- tical training under a master craftsman is required. It is only as the 280 BROADENING THE TRAINING occupation grows more complex that technical theory and general education must be introduced, and still, for a time,, all three phases of the preparation can be handled by one and the same organization. A further stage in the upbuilding of a complex educational process is reached when, for the better adjustment of means to the end in view, the organization itself must be split, and responsibility for the fulfil- ment of these three distinct aims is distributed among three distinct centres of organized activity. These centres in legal education are first, the law office, or such other centres of active professional work as may arise. If practical training in the law is to be conducted under condi- tions resembling actual practice, it must be through cooperation be- tween the schools and these outside agencies. A second centre is the law school itself. Whatever may be attempted in the way of providing practical training under academic conditions, the special function of a law school is to provide, if not adequate theoretical knowledge of the law, then at least the training which will enable students subsequently to acquire this knowledge for themselves.^ Incidental to the discharge of this function, the school must decide which portions of the law may best be taught by methods appropriate to it, and which may better be left to the practitioners' centres. The third centre is the mechanism of lower schools and colleges, upon which the responsibility for general education is properly thrown. Incidental to this the law schools and the colleges must determine the boundary line where "law" ends and general education begins, so that each may concentrate upon its ap- propriate share of the common burden. Each of the three centres is naturally disposed to magnify the importance of its own special con- tribution to the task of devising a complete and well-rounded prepa- ration for the bar. Each is disposed to imagine that if it does its own job well, it does not matter so much what occurs in the other two phases. Each therefore is disposed to bring as much as possible of the entire educational process under its own control, even though this be at the expense of other phases of training equally valuable for the stu- dent. The final stage in educational development is attained when the three centres learn to cooperate instead of to compete. A single larger organization, the several parts of which are mutually supporting in a spirit of subordination to the common whole, is the goal toward which American legal education is moving. 1 For the limited sense in which training conducted with this object in view may itself be termed "practical," see below, page 285. CHAPTER XXIV INADEQUATE PROVISION FOR PRACTICAL TRAINING THE failure of the modern American law school to make any ade- quate provision in its curriculum for practical training constitutes a remarkable educational anomaly. The change from the law office to the law school as the predominant factor in preparation for the bar — the transition, in other words, from the apprenticeship to the insti- tutional stage of educational development — occurred earlier in medi- cine, and little later in engineering, than in law. Yet there is nothing in American legal education that corresponds in any way with the elab- orate clinical facilities or shopwork provided by modem medical and engineering schools. Nor, so far as the writer is aware, is there any for- eign country in which education for the practice of the law is so largely theoretical as it is in America.^ Three causes seem to have combined to produce this curious result. In the first place, the growing complexity of American law, which is in far worse plight in this respect than that of any other country, began to make its influence felt just at the time when the democratic reac- tion against long periods of training was at its strongest. In itself this complexity tended merely to force students to supplement their prac- tical office training by theoretical work in a school. Coming at the time it did, however, its effect was to squeeze the office out entirely. For as the difficulty of mastering the theory increased, and it remained impossible to extend the period of training to correspond, that phase of legal education which could most easily be spared had to be slighted or given up. Even apart from the natural tendency of all institutional teachers to exaggerate the value of theoretical or closet as against prax;tical work, it is undeniable that the need of practical training in 1 The reader is cautioned not to be misled by the many ambiguities latent in the terms "practice'' and "practical." Our American universities are much more "prac- tical" than those of England and Continental Europe, in the sense that they devote themselves primarily to training practitioners, and only incidentally to developing legal scholarship. In the process of establishing their predominance in this vocational field, however, the schools maintained by these universities have crowded out outside agencies, in which practical training, as distinguished from theoretical knowledge of value to practitioners, might be secured. Obliged to fight for their existence against the older law offices, they have, with few exceptions, discouraged the rise or survival of anything corresponding to English "reading in chambers," or articled clerkships, or similar French and German institutions that supplement the necessarily theoreti- cal school work. 282 BROADENING THE TRAINING the application of one's theoretical acquirements is not so absolutely imperative in law as, for instance, in medicine. Except possibly in murder trials, young lawyers at least do not kill their clients by their mistakes. Law practice is itself, much more than either medicine or engineering, a closet pursuit. The need for quick decision, without op- portunity to consult authorities, arises less often. And however much of a handicap it may be to a young lawyer to find himself utterly in- competent to apply his knowledge when, upon admission to the bar, his formal education is supposed to be complete, still if he has any apti- tude for his profession he can and does pick up the things he has yet to learn. It constitutes a serious defect in legal education that he should be thrust thus helpless into active practice; but it would be much more serious if superficial expertness were assured at the expense of more vital matters.' Since American law has never stopped growing in difficulty, this cause operates to-day almost, if not quite, as strongly as it ever did. It still remains a matter of judgment, which is decided differently by different schools, whether it is worth while even to try to take time from theory to devote to practice. But furthermore, even those law teachers or bar examiners who recognize the need of additional prac- tical training are confronted with another difficulty, that does not beset members of other professions to anything like the same extent. This is the difficulty of securing objects upon which their students may practice. The engineer deals very largely with things. If the student cannot be given a gang of real laborers to boss, at least he can trian- gulate a genuine field. The law student on the other hand can do little that approximates the conditions of actual practice until he is brought into touch with an authentic client. In this respect he resembles the medical student, who must have real patients to practice upon. But here again the legal profession suffers from the fact that, until quite recently, it has conspicuously failed to support charitable institutions in which a varied assortment of patients may be secured. "Legal aid" has just begun to develop supply centres analogous to hospitals and dispensaries, and with which similar connections may be arranged. In 1 For this reason the opposite extreme from a purely theoretical law school course — namely, acourseof preparation pursued entirely in a law office — finds few defenders to-day. However shallow may be the theoretical knowledge imparted by the weakest night school, if it is sufficient to satisfy the student — who is not easily imposed upon by a merely fraudulent institution — it at least constitutes a better preparation for practice than the haphazard empiricism of an office. INADEQUATE PRACTICAL TRAINING 283 the past the profession, through its baxskwardness in performing com- munity service, has stunted its own development. For not only has the number of clients upon whom educational experiments might be tried been kept relatively small, but those that exist have been relegated to the private law office. Now, broadly speaking, private law offices do not want law students and law students do not want them. The offices, once glad enough, when the demand for legal work exceeded the supply of workers, to take in untrained beginners, can now, through the night schools, secure clerks who are much better qualified to do their work and who possess the privi- lege of admission to the courts as well. The throwing open of the bar and of the schools to women, after the Civil War, increased this possi- bility."^ This practical exclusion of students from any except a formal connection with law offices is the less to be regretted for the reason that, with the present tendency toward specialization in law practice, few offices could provide a student with experience that would be of much value to him save in one narrow and not always commendable rut. If he escaped the atmosphere of the ambulance chaser, he would be likely to become a corporation slave. We have already seen^ that attempts were made by practitioners during this period to revive the old law office connection, in two alternative ways: by adding a definite period of preparation, to be devoted exclusively to office work, as under the ori- ginal Harvard plan ; or by founding law schools designed to interlock with the office during the entire period, on the English model. Both attempts failed, for the reason that they were based upon pleasant mem- ories of what once had been, rather than upon a frank facing of facts as they then were or were shortly to become. The independent law office that supplied to its students not only general training but also the fine ethical traditions of the older bar has, at least in our larger cities, disappeared, apparently beyond hope of resurrection.' 1 Space does not permit an account of this movement, which has produced much less momentous results than were anticipated by either its advocates or its opponents. At present women are admitted to the bar of every state and to most important law schools, except Harvard and Columbia. In 1910 the census reported only SS8 women lawyers. In 1915-16 the U. S. Commissioner of Education reported only 687 women law students. There were 9015 women physicians and 662 women medical students at the same dates. See Doerschuk, Beatrice, Women in the Law, 1920. ^ Page 260; and compare below, pages 399-400. 3 For an attractive picture of student days in a Philadelphia law office, in the middle of the century, see "John Cadwalader's Office," in Law Association of Philadelphia. Centennial Addresses, pp. 366-374. 284 BROADENING THE TRAINING Finally, the strongest universities, as we shall see in the next chap- ter, were disposed to cut off even their theoretical instruction before it had reached that point of detailed concreteness that made it capable of being immediately applied. They were not merely content to leave the student at the edge of local practice,^ to leap aci'oss as best he might. They did not even cany him quite up to this edge. In such schools the failure to train students in the actual practice of the law was not a regrettable omission, forced upon them by external considerations. Rather it was an item in their general policy, determined by their con- ception of what their mission in legal education really was. Having thus no occasion to devise a system of practical training for their own students, they provided also no model for other schools to follow. Such being the underlying conditions, the record of progress in this direction was a blank — iinless it be a form of progress to learn, through failure, that the curriculum cannot be expanded on the practical side so long as the active practitioner fails to provide facilities for this ex- pansion. In place of contact with real clients and their problems, the schools could do no more than continue that spurious sort of practical training which is represented by moot courts and by drill in the draft- ing of written instruments. From the very beginning, all schools had included this first feature in their curriculum, and sevei'al had included the second.^ Work of this sort interests the student, both because it adds variety to his studies, and because it seems to him more closely to resemble what he will be called upon to do in actual practice than the mere mastering of theory. What he does in these highly specialized courses, however, constitutes only a very small fraction of the activi- ties in which, as a practicing lawyer, he will engage; and the tasks are so artificially simplified and rest upon such an unreal state of facts that it is doubtful whether the time devoted to them is justified. Granting that they are of some benefit to the student, a genuine prac- 1 The reader will again not confuse the term "practice " as here used to denote the entire activities of a practitioner, with ' ' practice " in its purely technical sense of a subdivision of the law of procedure. Nor will he confuse the distinction that legal theorists have evolved between substantive and procedural law, with the distinction between theoretical and practical training. The substantive law lends itself to theo- retical treatment more readily than does procedural law. The groundwork of the former is a little more apt to be taught in the form of principles systematized in books, the latter may be more safely left to be picked up in practice. Portions of the procedural law are, however, taught theoretically by many law schools to-day; and all law was originally taught by the practical, or empirical, law office method. ^ So Harvard, under the Story regime. INADEQUATE PRACTICAL TRAINING 285 tice course, dealing with real clients, would do all that they accom- plish and a great deal more. The continued attempt by the schools to do this sort of work themselves indicated merely that they had not dropped practical training from their ideal of what a complete course of legal training ought to include. It did not mean that they were in any adequate way remedying the defect forced upon them by the ab- sence of outside agencies with which they could effectively cooperate. A similar verdict must be passed upon the alleged "practical" value of the case method of teaching, originated at the beginning of this period by Dean Langdell of Harvard, and extended, during the period following, to many other schools. Postponing to a later chapter con- sideration of the efficacy of this method, as a means for enabling a stu- dent to acquire, during his student days or subsequently, a theoretical knowledge of the law,^ it should be noted, as one of the reasons for the success of the method, that the practice of the law is not by any means to be pictured as the application of well-settled legal principles to a simple state of facts. The practitioner's work includes this practical application of his knowledge, it is true; but it also consists, in large measure, of disentangling from a complicated state of facts the real issue, and then laboriously finding what the law, that affects his client's rights, is or ought to be. Any training that the student secures from his school that will assist him in performing this important part of a practicing lawyer's activities is undeniably practical training, in the same sense that training in arguing motions before a moot court or in drafting written instruments is practical. Now, since the case method, very effectively, does precisely this, it rightly claims, as one of its chief merits, that it is practical, to an extent that the dogmatic method of teaching is not; that students, who are encouraged by it to discover the law for themselves, are engaged in an activity much more closely re- sembling what in their later practice they will be called upon to do, than are students who simply absorb knowledge from a teacher.^ The fact that the case method, however, better than the dogmatic method, trains the student in this one out of the many activities in which he will later engage, by no means closes the gap that divides the theoreti- 1 See below. Chapter XXXI, pages 369 ff. ^The discovery that the case method, originally proclaimed as the only sound method of inculcating the theory or science of the law, possesses also a practical value for the practitioner, is of comparatively modern origin. See Redlich, Case Method in Ameri- can Law Schools, pp. 23-25 ; and compare Professor Williston's brief statement of the reasons for its success, in 29 Harvard Law Review (1916), 563. 286 BROADENING THE TRAINING cal law school from the realities of actual practice, any more than the existence of a moot court suffices to make a dogmatic school practical. It is impossible for any law school to duplicate within its own walls the conditions of outside life. Its own work must always be primarily theoretical, A line or gap between its work and genuinely practical training is inevitable. Unless or until the law school can find outside agencies, to whom it can delegate this part of its present responsibili- ties, the best it can do is to throw little bridges across, which reach practice, as it were, at various special points. It so happens that the schools which have committed themselves most unreservedly to the case method are precisely those schools ^ in which there is the widest gap between the instruction as a whole and the immediate requirements of the local pi'actitioner. Against this must be set the fact that the case method bridge is less flimsy than some other devices, and leads to a particularly important practical end. It by no means solves the problem, however, of providing an all-round training for the legal profession. One solution of this difficult problem that has recently been sug- gested is that legal aid societies may so expand their offices that ulti- mately they will be able to play that part in our educational process for which the private law office is no longer fitted.^ A discussion of the pros and cons of this proposal, and of the experiments in this direc- tion already started by several schools, would be outside the scope of the present Bulletin. In general it may be said that the objections urged against the idea concern rather its practicability than its inher- ent value. In the judgment of the writer, the movement is too promis- ing a one to be disregarded in any comprehensive view of the subject. The question of practicability can best be settled by the actual experi- ence of particular law schools and particular legal aid societies which, sincerely agreeing as to the possibility of cooperation, aim in this spirit to work out a mutually advantageous plan. Pending the result of such experiments, the more conservative schools and practitioners would do well to avoid such steps as might later make it more difficult for them to introduce a reform of proven worth. To this end, the question whether a supplementary period of office work should be required of 1 The " national " law schools. Compare the following chapter, and page 412. 2 See especially Rowe, WiUiaiu V., "Legal Clinic and Better Trained Lawyers — A Necessity," 11 Illinois Law Review (1917), 591-618; Wigmore, John H., "The Legal Clinic," 12 idem (1917), 35-38; Rowe, " The People's Law Bureau," 15 idem (1921), 424-436. INADEQUATE PRACTICAL TRAINING 287 all applicants for admission to the bar should not be answered in the negative, simply because the training secured by most office students, under present conditions, does them little good. The importance of bringing theoretically educated students into contact with genuine practice is such that, as a matter of principle, this general require- ment might well be insisted upon, and its admitted inadequacy be made a ground, not for opposing it, but for trying to make it better.^ 1 For a comprehensive discussion of Legal Aid Societies and their possibilities of de- velopment, see Smith, Reginald Heber, Justice and the Poor, Carnegie Foundation BuUetin Number Thirteen, 1919. CHAPTER XXV THE FIELD OF LEGAL KNOWLEDGE THE development of the theoretical portion of the curriculum will be discussed in this chapter only in its broader phases. These are, in the order of their direct appeal to the would-be practitioner : the law of the local jurisdiction ; the remainder of the technical law as administered by the courts ; and borderland or quasi-academic studies, such as international law, jurisprudence, government, etc. In Chap- ter XXVI the mechanical adjustments necessitated by the attempt to squeeze an increasing amount of work into a limited number of years will be considered. 1 . The Law of the Local Jurisdiction The law that a lawyer "practices" or applies in any particular case is always the law in force in a particular jurisdiction; and since the American Union is composed of forty-nine local jurisdictions, each of which, subject to the restrictions of the federal constitution, controls its own political and legal development, it follows that " American law,"' regarded purely as a body of rules enforced by the courts, is merely a general or generic term. Our law in the concrete is a system composed of forty-nine independent bodies. Powerful forces are at work, it is true, that encourage the formation of a uniform type. The pressure exerted by the federal organization from above is only one, and by no means the most important, of these forces. Because of our common origin, our common history and our common language, our state lawmakers (using this term in its broad- est sense) habitually borrow from other jurisdictions whatever they consider applicable to their local needs. The framers of state constitu- tions and of statutes to a large extent merely copy or adapt, rather than take the time and run the risk involved in attempting to formu- late original creations of their own. Furthermore, a very large part of the law of any jurisdiction has never been enacted by a legislature in statutory form. It exists only in the shape of scattered legal principles, stated or implied in judicial decisions as the grounds upon which these decisions rest. Many of these principles were enunciated by the English courts prior to the Revolution, or have been accepted as authoritative by so mary jurisdictions and textbook writers since then, that, ex- THE LAW OF THE LOCAL JURISDICTION 289 cept as modified by statutes, they are now regarded as settled for the entire country. The judges of each state consider themselves bound by any such principle of our "common" law,^ even if no c£ise involving its application happens ever to have arisen in their particular jurisdiction. Similarly, in the numerous questions that arise involving the interpre- tation of ambiguously worded statutes, or the reconciliation of statutes with constitutional provisions, the judges are in the habit of paying great respect to the conclusions reached by the courts of other states in passing on similar problems. The influence of this spirit of legislative and judicial comity can- not, however, do more than mitigate the tendency toward diversity that is inherent in our political structure. At best it can produce only an ideal standard of law, to which the separate jurisdictions, each at its own discretion, conform. There will be leaders and there will be lag- gards in the introduction of statutory change; and while, in the ab- sence of such change, the well-settled principles of the common law are supposed to be in force in every jurisdiction, it is not always easy to determine, out of the vast number of principles that have been enun- ciated or glimpsed, which are the ones that may now be considered as settled. As to many points, therefore, courts as well as legislatures dis- agree, partly because the law is in a continual process of development that proceeds unevenly in different states, partly because it is so com- plex that the judges are themselves lost in the morass of their own de- cisions.^ In a general way the divergencies among our forty-nine bodies of law may be said to be less marked than the resemblances, but there cannot be absolute identity as between state and state. The forest con- tains only oaks, but each tree differs from every other. 1 One of the most astonishing deficiencies in the education provided by our lower schools is its general failure to make clear the meaning of such an elementary and basic feature of our political system as the " common law." It ought not to be neces- sary to have to warn the lay reader that the paramount body of federal law, although in a sense " common " to all jurisdictions, is entirely distinct from that unenacted law the mastery of which constitutes the principal occupation of the practitioner and the principal object of study in law schools. Although this confused mass of judicial precedents — some of them applicable to all jurisdictions, some to only a few juris- dictions, some peculiar to a single jurisdiction, some entirely obsolete — is gradually being displaced or absorbed by statutes or constitutional provisions, both state and federal, it still constitutes the principal source of those legal principles that govern private relations, and is what is meant by the phrase "common law." 2 To these general and more or less fortuitous variations in the laws of the several states must of course be added more permanent differences grounded in economic considerations : the high development of commercial law in New York, of the law of mining and of water rights in California and Colorado, etc. 290 BROADENING THE TRAINING This diversity of subject-matter, which affects procedural law most inarkedly, but substantive law likewise to no small extent, raises a prob- lem in legal education which can be solved by any particular school in one of three ways. The simplest solution — the one that most naturally commends itself to possible students, and the one that is likely to be adopted when the great majority of students, present and prospective, intend to practice in one particular jurisdiction — is to focus the in- struction from the beginning upon the law of that state, and to continue it down even into the fine points of this law. If the sole end and aim of legal education is to prepare students to practice the actual law with which, at least for a few years, they are likely to be exclusively con- cerned, it requires no extended argument to show that a curriculum or- ganized throughout with this end in view,and including all last-moment details so to speak, provides the very best system of training. Many schools have been, and will be, organized from this severely practical point of view. It represents one ideal of legal education, and an entirely legitimate one, assuming always that in the effort to do justice to the fine points at the end, the broader introductory portions of the training are not slighted. There is no inherent reason why a school that aspires to teach only actual local law should not extend its curriculum back- wards, as it were, provide thereby a basis upon which the fine points of this law may rest, and be a very good school — ^for this particular purpose. Before the Civil War, however, the law schools, very similar to one an- other in other respects, had begun to diverge on just this question. Har- vard had bravely announced in its catalogue in 1841 that "No public instruction is given in the local or peculiar municipal jurisprudence of any particular state." Dwight printed a similar statement in regard to the work of his Columbia school. Other schools also that catered to stu- dents from several jurisdictions obviously could not do everything for everybody, and with or without formal announcement perforce pursued a similar policy. It is easy to assert that this policy was at bottom de- termined for them by the composition of their student bodies, and that arguments adduced in support of it were merely attempts to justify what the immediate interests of such schools in any event required — that they sagaciously claimed as a merit what was really a rather striking de- ficiency in their course of training. Given the superficial character of all legal instruction before the Civil War, it is doubtless true that here, as in other respects, all schools were much alike in following the line of THE LAW OF THE LOCAL JURISDICTION 291 least resistance. It is by no means clear that Harvard put enough into her ante-bellum curriculum to make up for all that she left out of it. A thoroughly good local law school, judged by modern standards, would probably be a better school from every point of view than was the Co- lumbia school while it dallied with generalities. It would, however, be a clear case of putting the cart before the horse to assert that the original Harvard policy of omitting this local law element from its curriculum was forced upon it by the circumstance that students from many dif- ferent jurisdictions attended its school. Quite the contrary, its tradi- tional policy, inherited from Dane and Story, was to induce students from different jurisdictions to come with precisely this object in mind: that here they would find a school in which only national law was taught, as distinct from the aberrant law of any particular j urisdiction.^ A "national law school" can be defended, as against a local law school, by arguments designed to prove that the local type is bad. It may for instance be contended that, while in theory a school whose primary aim is to teach local law may be made to serve this purpose acceptably, in practice teachers who are dominated by such narrow views will never provide their students with a suificiently broad foun- dation. Or again it may be urged that a local law school permanently stunts the development of a lawyer — that precisely because it pre- pares him very completely to practice the particular legal system to which it is keyed, it permanently unfits him ever to cope with any other. Attacks of this sort, however, provoke equally plausible retorts as to the practical ineffectiveness of generalized study. The sound argu- ment in support of a national law school is based on a frank recogni- tion of the fact that a school of this type is designed to serve a differ- ent purpose from that of a local school. Its primary interest is not with the law as it is, but with the law as it may become. It recognizes the lack of uniformity in the law of the several states as a fact, but as a regrettable one, and conceives its mission to be to do all in its power to remedy this evil, both on the personal and on the scholarly side. It sends into practice, into the legislature, on to the bench, men who, understanding the ideal as distinguished from the actual law, rec- ognize their responsibility as parts of a general law-making machine and are animated with the ambition not merely to utilize the law as it is, but also to convert it into a more efficient instrument of justice. It 1 What the Germans call Sonderrecht. Compare Redlich, Case Method in American Law Schools, p. 53. 292 BROADENING THE TRAINING produces textbooks and periodical articles with the same end in view. It is not daunted by the sneering comment sometimes made that it encourages its youngest graduates to think that they know more law than the courts. It pictures as the special function of a university law school that it should train practitioners and scholars who in the aggre- gate, as they mature, certainly ought to be better equipped for the task of intelligently reconstructing the law than are the products of old empirical methods. This was the tradition of Dane and Story^ — the conception of in- stitutions of learning which should slowly dominate the law, fusing into a coherent homogeneous body the scattered and frequently con- tradictory principles that are ground forth by overburdened courts or adventurous legislatures. The difficulty with carrying this conception into effect is that pending the time when the law becomes what it ought 1 See, in addition to Dane's letter offering his donation to Harvard (page 143, above), the following passage from his Abridgment, quoted approvingly by Story in 1826: " A great republic ... is the natural field of law and equity; but to produce these in perfection there must be a national character. The rules of law and equity, in im- portant matters, must be uniform, and pervade the whole nation." Story, Joseph, Miscellaneous Writings, p. 329. In the interest of clearness I have, in this attempt to explain the mission of the "national law school," used the term "law" in the sense familiar to hardheaded practitioners, to signify the bodies of rules enforced by the courts ; and I have treated the body of doctrine that is taught by the national schools as a gloss of critical com- ment upon these — something that may lead to changes in the law, but that is not law itself. In Continental Europe, the analogous body of university doctrine is re- garded, if not as absolutely authoritative genuine "law," at least as the nearest ap- proach to such law that they possess ; statutes and decisions are the still less perfect expression of the principles expounded by scholars. In other words, England and the United States identify " law" with the actual, France and Germany with the ideal. It is possible that just as the Continental conception of law was the outgrowth of attempts, by civil lawyers, to reconcile the diversities foimd by them in bodies of ac- tual local law, so we, with our forty-nine variant jurisdictions, may in time be led, through the activities of our national law schools, to think in Continental rather than in English terms. The circumstance, however, that Continental jurists have forced into popular usage an ethical word {droit, Recht) to signify law as a whole (jus), while we habitually use the same word to denote what our traditions have taught us to regard as even more important than the law of the state, namely, the rights of the individual, puts our universities at a rhetorical disadvantage. It is therefore more probable that generalized, university-made legal principles will acquire authority in this country under the name, and in the spirit, not of "law," but of justice. As to the peculiarity of the Anglo-American conception of law, see Lowell, A. Law- rence, Tlie Government of England, 1908, 11,471-88; and compare Roscoe Pound's reference to ' ' the ambiguity of the term ' law ' that requires us to use one word for the legal precepts which are actually recognized and applied in tribunals of a given time and place and for the more general body of doctrine and tradition from which these precepts are chiefly drawn and by which we criticize them." 34 Harvard Lata Re- view (1921), 453. THE LAW OF THE LOCAL JURISDICTION 293 to be, practitioners have to make their living out of the law as it is. There is an insistent pressure, therefore, upon the national schools to supplement their particular function of teaching ideal or generalized law, by courses which shall not leave their students suspended in this rarefied scholarly air. The advisability of doing something of this sort was especially apparent to the eastern schools in 1875, when New York was about to adopt an extremely complicated Code of Civil Procedure. This highly technical addition to the local law was so bad that since then the profession has devoted much of its energies to abusing it, and the legislature to changing it and making it worse. If there ever was a portion of the law that has no place in an ideal system, this was an in- stance.^ Yet there it was, a part of the law of the stated No one could be considered in any sense qualified to practice in New York, who was not familiar with it. Both Harvard and Columbia, accordingly, were constrained this year to depart from their historic platforms and to in- stitute courses in this new subject. Three years later Harvard abandoned all attempt to teach procedure. In 1886, however, both students and the University authorities petitioned for a special course in Massachu- setts Practice. For the moment the faculty consented only to allow stu- dents the use of a room, in which they might organize their own class, but in 1890 logical consistency was sacrificed to practical expediency, and an instructor in the Peculiarities of Massachusetts Law and Prac- tice was appointed. Two years later, instruction in the New York Code of Civil Procedure was revived. Since 1896 both courses have been given in alternate years, as extra courses not counted toward the degree. Thus — since in Columbia the New York Code was eventually made a regular elective — a third solution of the local law problem was evolved. Nationalized law was to constitute the main body of instruc- tion, with addenda of local law courses for the benefit of particular groups of students. This solution was pushed to its logical conclusion 1 The writer must plead guilty to using this violent language in regard to something that, at first hand, he knows nothing about. He can merely testify that the Code of Civil Procedure was originally forced on the profession over the protest both of the New York City Bar Association and of Professor Dwight, and that if it has any de- fenders left to-day he has not happened to run across them. Its evil reputation is such that it is difficult to find a New York practitioner even now who can express himself temperately in regard to any suggestion that an attempt should be made to codify any other portion of the common law at any time in the future, however remote. This disastrous failure killed, so far as one entire generation of New York practi- tioners was concerned, the entire codification movement. For a concise history of this Code, see 6 Journal issued hy the American Bar Asso-- ciation (1920), S3. 294 BROADENING THE TRAINING in the West. As early as 1891, the State University of Iowa law school was announcing that a course in the law of a particular state would be organized for the benefit of any three seniors that might apply for it. This third scheme of instruction, if it were to be carried out com- prehensively and adequately, would be very wasteful both of money and of time. On the other hand, where it is not made to cover the entire country — where special facilities are provided for students from one or two jurisdictions only — the school is to this extent less likely to attract students from the slighted states; and this in spite of the fact that states from which fewest students come are precisely the ones that need most to have nationalizing influences brought to bear upon them.* Nor does it work well to have the school cover some, but not all, of the important peculiarities in the law of some one state. They thereby as- sume a responsibility toward their students that they do not ade- quately discharge. The Harvard-Columbia device of including a course in the New York Code of Civil Procedure, but ignoring peculiarities in New York's substantive law, has been the especial stimulating cause of the friction with the New York bar examiners, to which allusion has already been made.^ The bar examiners have felt it their duty to insist that applicants shall not be admitted to practice law in New York unless they show familiarity with recent decisions of the New York courts. These two schools, being more interested in reforming than in disseminating the law that is handed down by these courts, resent being asked to take time to explain arbitrary peculiarities of which they disapprove; resent still more the fact that schools which teach these peculiarities without even any suggestion that they are peculiar are favored by New York examination methods.' It follows from what has been said that a generally satisfactory solu- tion of the problem presented to the legal educator by the existence of local peculiarities in the law has not yet been reached. It will not be reached until the state learns to discriminate as the schools already are beginning to do. Such progress as was made during this period, or as has been made since then, toward solving the problem, has taken the foiTn of accentuating a differentiation, long existing in theory, be- tween two types of schools : those that accept local peculiarities as facts to be taught, and those that regard them as evils to be eliminated. 1 Harvard now encourages students from such states to form local law classes of their own, on the 1886 model. 2 Page 268. 3 Written in 1917. THE GENERALIZED LAW OF THE COUNTRY 295 Because of this difference in fundamental ideals, each type of school will always be weak where the other is strong. Perhaps each might profitably borrow a leaf from the other's books. It may be that the local law schools might preface their localized instruction with a more thorough treatment of the law that is common to all jurisdictions, and that the national schools might add a fuller treatment of the local law than now appears. Whatever changes, however, may be made in this respect, a difference in emphasis will always remain. Schools that exist primarily to satisfy a public demand, which in a democratic com- munity is bound to be reckoned with, will be stronger at the hither end of the instruction, where immediate utility is most manifest. Schools that exist primarily to exercise that leadership which a demo- cratic community requires will be stronger at the farther end, in stud- ies whose utility is perhaps even greater for being more remote. When each type of school learns to respect the other's especial field, and the state devises a bar admission system capable of doing justice to both, the problem will be in a fair way of being solved. It is probable that in our final educational scheme, the two types will be found cooperat- ing with one another.^ 2. The Generalized Lam of the Country as a Whole The technical or professional law that the legal practitioner will be called upon to practice — -"municipal law," in Blackstone's terminology 1 The general acceptance of the case method of teaching by the more scholarly na- tional law schools has made possible the following arguments tending to show that the local law problem is solved in a satisfactory manner by these schools. First, since this method involves the critical discussion of conflicting decisions from numerous jurisdictions, the student need only make a blue pencil mark opposite references to his own state ; the sum of these references constitutes the actual judge-made law of his state. Second, a competent instructor always notes in passing the principal modi- fications in the common law produced by statute in any state. Third, the object of the case method being to produce lawyers who will be able to look up the law for themselves, rather than to give them, while they are still students, a detailed know- ledge of the law, most peculiarities of the local law belong with those minutiae that are properly excluded from the curriculum of a university law school. This last argu- ment refutes the other two, and brings up the real question at issue. It being ob- viously impossible for a national case-method law school to teach within the same period of time as many details of the actual law as can be covered by a less ambi- tious local institution dedicated primarily to this purpose, does it therefore follow that systematic instruction in the actual law ought not to be offered by anybody? The answer of the future practitioner, as distinguished from the future reformer of our complicated system of laws, is certain to be an emphatic negative ; and since there are enough of him to support the sort of institution he wants, such institutions will always flourish. 296 BROADENING THE TRAINING — has from the beginning been the object to which the American law school has primarily devoted itself. Whether or not it has carried its devotion so far as to include details that vary from state to state, it has tried to cover all branches of this law that are of general application.^ At first it was possible to combine with this study other topics, notably government (political science), which is a division of law in a broader sense, and is a valuable study both for the legal practitioner as such, and for the practitioner in government — the politician. But with the increasing difficulty of doing justice to the narrower field, such top- ics had been pretty generally crowded out even before the Civil War. A subject described as Constitutional Law survived, indeed, as a stand- ard topic, but under the influence of Cooley's text^ this has tended to become simply a technical course on constitutional limitations — a dis- cussion of the principles established by the courts in determining the constitutionality of legislative enactments. The adoption of the Four- teenth Amendment to the federal constitution, just after the Civil War, greatly increased the volume of these decisions, and, together with the growth of the common law itself, made it necessary for the schools to confine themselves even more rigorously than before to technical law studies. This restriction of the law school curriculum to technical law was bad for the lawyer, and perhaps even worse for the politician. For in spite of the fact that legal education was not keyed to his especial needs, the inherent connection between law and politics has made the law school the nearest thing to a training ground for the profession of politics that we possess. The lawyer, more than any other single vocational type, is tempted to diverge from the career of private practice, for which he has consciously prepared himself, to that of political life, for which he finds himself more or less prepared incidentally. His law training is at least more useful to him for this purpose than are most other forms of training. His success in politics is, for instance, much more marked than that of the products of government or political science depart- 1 So at least since 1848, when, after Story's death. Criminal Law was restored to the Harvard curriculum. Because of its large statutory and local element, this subject did not fit into Story's conception of a common-law national school. The retention by Langdell of a course bearing this name, in spite of the fact that the bulk of what one would expect to see treated under this head cannot be taught by the case method, shows how firmly planted in 1870 was the tradition that all branches of technical law must be included in the law school curriculum. 2 Constitutional Limitations on the Legislative Powers of the States, 1868. THE GENERALIZED LAW OF THE COUNTRY 297 ments that have been established independently by the colleges.^ Hence the control of our government has very largely passed into the hands of a profession that is undoubtedly better qualified to discharge this responsibility than is any other single class, but that has been trained, nevertheless, in a narrow and one-sided manner. The trouble with our lawyer leaders is not alone that they have never been given an' oppor- tunity to make a careful study of the political mechanism that has been confided to them to operate and to perfect. In addition they carry over into public life the particularist as opposed to the social point of view. Their primary interest, as private practitioners, having necessarily been to serve their clients, they continue, often in good faith, to serve pri- marily their constituents in public life — corporations or labor unions, as the case may be. They are predisposed to identify the interests of the community with those of some special party or part, rather than to sub- ordinate special interests to the common welfare. Narrow as is this field of technical law, in comparison with all that might profitably be included in an ideally complete curriculum, never- theless it is itself continually expanding as part of the general growth of the law. This expansion shows itself both in the development of new topics in the law administered by the state courts^ and in the grad- ual extension of federal law over specific portions of private practice.^ Toward the end of this period, moreover, the Interstate Commerce Commission was established; it has gradually dawned upon the schools that the determinations of this and similar administrative boards, both federal and state, constitute a new type of law, bearing somewhat the same relation to the law found in judicial decisions that equity origi- nally bore to the common law, and as properly to be included in a com- prehensive curriculum. The schools have responded to this challenge to their activities with fair success. With much variation of detail as regards the omission or emphasis of special topics, such as admiralty or patent law, they may be said to have kept abreast of their increasing responsibilities in this respect. They have felt obliged to expand their instruction in this manner, for the reason that although a considerable 1 This is of course partly to be explained by the fact that the attempt on the part of the colleges to fill the void left by the narrowing of the law school curriculum Is too recent to enable us to judge it by its fruits. Predominantly, however, such depart- ments have been more interested and more successful in encouraging productive scholarship than in training their students to enter politics as a profession. 2 As an example from a later period. Mining Law and Water Rights. ^ E.g., Admiralty, Patent Law, Bankruptcy. 298 BROADENING THE TRAINING measure of specialization has begun to appear in the prax!tice of the law, none is recognized by the bar admission rules of the states.' A prac- titioner may confine himself in his practice to admiralty or to patent law, to defending criminals or to protecting corporations, to trial work or to approving municipal bonds, but to do any of these things he has to be a general lawyer first. In this, as in other questions of policy, the schools must conform to the traditional organization of the profession. This extension of the field of law, however, over new areas of human conduct, has constituted only one element, and not the most conspicu- ous element, in the growth of technical law. Entirely apart from the influence of this factor in adding to the number of expository or peda- gogical heads under which the law is arranged for instructional pur- poses,^ there has been a tremendous increase in the mere volume of statutes and decisions.^ This has been a much more serious complica- tion in the pi"oblen» of the schools. Confronted as they now are with the triple responsibility of teaching law that is developing new branches, of teaching law that is increasing daily in bulk, and of teaching law by modem and more thorough methods, they show signs of giving way under the strain.* Technical law threatens not merely to crowd every- thing else out of the curriculum, but to be itself too heavy a burden for any single school to carry as a whole. The throwing overboard of local law already lightens the load for some, but some further action will almost certainly have to be taken by the admitting authorities and the schools. And as there seems to be no practicable means of re- ducing the volume of the law in the near future, and nobody wants the law to be less thoroughly taught, the only available remedy is in the direction of specialized schools leading into specialized branches of the profession. This development will probably not occur very soon. 1 Such phenomena as New York's special provision for conveyancers, Colorado's ex- emption of probate practitioners from its bar admission rules, etc., are indications of uncertainty as to just what the rights and privileges of a duly admitted " attorney and counsellor-at-law" may be. He frays off into a plain citizen in the lower or inci- dental reaches of his practice. So the question whether or not one who is not a lawyer may pose as offering legal advice, or may receive money for giving legal advice, is ignored or answered differently by different states. These failures to deiSne the pro- fession, however, are very different from a conscious effort to differentiate it. 2 As to the division of the law into subjects and " courses " by the schools, see below, pages 345-353 and 363-369. 2 As to this increase in the volume or bulk of the law, as distinguished from what may be termed its superficial area or field, see below, pages 373-374. Indiana " 1829-1830 Princeton " Transylvania Harvard 24 Lafayette William and Mary Transylvania 24 Transylvania North Carolina Hamilton" Virginia 23 William and Mary ... Yale 21 Dickinson" William and Mary Georgia Maryland North Carolina ... 1 In 1820-21, ^ Graduates * Graduates, * Graduates ' Graduates " Graduates. 'Graduates ' Graduates ' Graduates (one- year course), 32. , 13. (two-year course), 26. (one-year course), 16. 15. (two-year course), 12. (one-year course), 12. (two-year course). 0. '° Graduates, u. *^ Graduates (one-year course), 105. " Graduates (one-year cour-se), 76. " Graduates, 36. '* Graduates (two-year course), SO. " Graduates (one-year course), 11. '" Graduates (one-year course), 8. ^' Graduates (one-year course), 0. " Graduates (one-year course), 0. 452 APPENDIX TABLE 13. ATTENDANCE AT SIX LARGEST LAW SCHOOLS SINCE THE CIVIL WAR The figures in general are those of the U. S. Commissioner of Educa- tion and are the latest available. Because of the uncertainty, however, as to the year to which his earliest figures refer (see below, page 463), the Michigan, Columbia and Harvard figures of 1869-70 are as given in the catalogues. So for all six schools for 1919-20. For additional intermediate figures, see Chapter XVIII, section 2. 1869-1870 1909-1910 1913-1914 Michigan 808 Michigan 833 Georgetown 1005 Columbia 230 Harvard 766 Chicago Kent 786 George Washington 166 New York Law School 749 Harvard 694 Harvard 120 New York University 732 New York University 678 Albany 110 Georgetown 614 Michigan 612 Virginia 109 Chicago Kent 664 Southern California 606 1879-1880 1910-1911 1914-1915 Columbia 466 Harvard 810 Georgetown 998 Michigan S71 Michigan 792 Chicago Kent 761 Hastings 181 New York Law School 751 Harvard 730 Harvard 166 Georgetown 717 Michigan 679 Boston 161 New York University 679 New York University 676 George Washington 141 Chicago Kent 691 Southern California 630 1889-1890 1911-1912 1916-1916 Columbia 456 Georgetown 924 Georgetown 1001 Michigan 405 Harvard 809 Harvard 791 Harvard 266 Michigan 798 New York University 706 Georgetown 217 New York Law School 706 Chicago Kent 646 George Washington 210 New York University 649 Southern California 619 Boston 180 Chicago Kent 627 New York LaW School 603 1899-1900 1912-1913 1919-1920 Michigan 883 Georgetown 1003 Georgetown 1062 New York Law School 775 Chicago Kent 804 New York University 979 New York University 634 Michigan 779 Harvard 883 Harvard 616 Harvard 745 George Washington 762 Minnesota 628 New York University 649 Ford ham 687 Boston 409. New York Law School 664 Suffolk 591 EARLY LAW SCHOOL CURRICULA 453 § in. EARLY LAW SCHOOL CURRICULA The working classifications devised by early law schools were of two main types, according as a narrowly technical or an ambitiously broad field of study was contemplated. The Litchfield school illustrates the narrow type.^ The manuscript notes of lectures indicate that as early as 1794 Reeve had organized the curriculum of his one-year school under ten main divisions, in- creased after the advent of Gould to thirteen. The first two columns of the following table show the development of this curriculum in twenty years. The divisions are listed in the order in which they, or their constituent topics, appear in the Baldwin manuscript of 1813. The Hartford manuscript of 1794 shows the same order except that Evidence there appears after Pleading, and Equity after Contracts. The two Yale manuscripts, representing intermediate years, maintain the same order for the first three divisions, but thereafter exhibit con- siderable variations. The figures denote the number of manuscript pages occupied by each division. The last two columns of the table show, for purpose of comparison, the first Story -Greenleaf curriculum at Harvard, as distributed between the two professors, and Dwight's Columbia curriculum, as taught by himself to both first-year and second-year students. Litchfield Litchfield Harvard Columbia 179U ISIS 18S5-S8 1868-75 Introductory Iff 50 Greenleaf First year Domestic Relations 95 194 Executors and Administrators 76 69 Sheriffs and Gaolers 41 Contracts with its actions 176 378 Greenleaf^ First year Torts 50 74 Second year Evidence 83 72 Greenleaf Second year Pleading 69 281 Greenleaf Second year Practice 68 Second year The Law Merchant' 89 266 Story Second year Equity 26 51 Story Second year Criminal Law 64 Second year* Real property with its actions 126 364 Greenleaf First year Corporations Greenleaf Constitutional Law Greenleaf Conflict of Laws Story 696 pp. 12mo. 1972 pp. folio 14 yr. hrs. 15 yr. hrs. ' For the curriculum of the William and Mary school, see page 116. * Story also gave a course in Sales. ' In the three earliest Litchfield manuscripts this branch of the law is described successively as "Law Merchant," " Lex Mercatoria " and "MercantileLaw;" the published analysis of the latest manuscript shows, instead, Bills and Notes, Insurance, and six minor topics treated suc- cessively. Story taught six distinct topics, grouped together, to conform to languase used by Dane in establishing the professorship, under the general head of " Commercial and Maritime Law." Dwight used the term "' Commercial Law." * In the later years of the Dwight school Criminal Law, not being included in the list of topics prescribed by the Supreme Court, was omitted. 454 APPENDIX The subject-matter included under the preceding titles was not, of course, uniform. Several of the topics not specifically mentionedat Har- vard, for instance, were doubtless covered in the introductory course on Blackstone and Kent. Bailments, which at Litchfield was taken up in connection with Contracts, was regarded by Story, under Hoffman's influence, as part of the Law Merchant. Sales was taught at Harvard separately from both Contracts and the Law Merchant. By combining the titles into larger groups it is possible to eliminate this source of confusion and, comparing the number of pages devoted to these groups in Blackstone's text and in the Litchfield manuscripts, and the approx- imate number of year-hours devoted to instruction in these subjects in the early Story school, to indicate with considerable accuracy their relative importance. The percentage figures secured by this method bring out strikingly the development of commercial law (using this term in a broad sense to include Contracts, Sales, and Corporations as well as the various divisions of the Law Merchant) and of Equity at the expense of Criminal Law and of Real Property. Blackstone lAtchfield JAtchfield Harvard 1165-1169 3794 181S 18S5-18S8 The Law Merchant, Contracts, etc. m 31% 33% 40% Equity 2 4 3 14 Pleading, Practice and Evidence 13 13 21 14 Criminal Law 21 3 Real Property 26 18 18 7 other branches and introductory 37 34 22 26 100% 100% 100% 100% David Hoffman, in his Course of Legal Study, published in 1817, painted his large canvas with a broader stroke. He was interested not in minutely subdividing a narrowly technical field, but in listing as many textbooks as possible among less carefully analyzed groups. His fourth division, for instance, entitled the "Law of Personal Rights and Remedies," covered not merely , the Law of Persons, as that term is commonly employed to-day (the law of family relationships, etc.), but also all branches of the technical law that he could not fit in any- where else, including subjects so divei-se as Contracts, Pleading and Evidence. The title of this division was suggested by the first of Black- stone's four major divisions, "Rights of Persons," but its content was decidedly different. It excluded topics treated by Blackstone under this head, notably that of governmental organization, and included other topics discussed elsewhere by Blackstone. In the second edition of his Course of Legal Study (1836) Hoffman omitted the Constitution and Laws of the Several States, but added a long list of "Auxiliary Sub- jects," including Eloquence and Oratory, Codification and Proposed Amendments of Law ("law reform"). Military and Naval Law, Logic and Professional Deportment (legal ethics). Both the University of Virginia and Harvard were influenced by HoflSnan's classification. At Virginia the only change, other than a EARLY LAW SCHOOL CURRICULA 455 change of order, in the curriculum as originally established was a throwing together of four of Hoffman's thirteen divisions under the general head of "Common and Statute Law."' Story, although he or- ganized his Harvard curriculum for teaching purposes along the more analytical lines determined by existing texts, printed also a bibliog- raphy classified very much as under Hoffman's scheme. Story entitled Hoffman's miscellaneous division at first "Personalty," but after 1832, "Personal Property." This list of recommended texts, perpebuating an unhappily illogical scheme of classification, continued to be printed in the Harvard catalogues until 1869, and because of the custom of exchanging catalogues between school and school undoubtedly spread confusion throughout the country. The table on the following page shows, in the first three columns, how closely, except in the matter of sequence, Virginia and Harvard followed Hoffman's scheme. The last column shows the major divisions that were represented by texts actually used in the Harvard two-year course. The miscellaneous "Personal Property" division was repre- sented, in 1832, by texts on Contracts, Sales, Pleading, and Evidence; in 1834 Corporations and Conflict of Laws were added. "Commercial and Maritime Law" included texts on Shipping, Bills, Agency, In- surance, Bailments and Partnership. For other early working classifications of the field of law or the law school curriculum, see Blackstone; Zephaniah Swift's System of the Laws of the State of Connecticut, 1795; Kent's Dissertations, 1795, and Commentaries, 1826-30; Story's Conflict of Laws, 1884, chap, iii; But- ler's Plan for the Organization of a Law Facultt/ in the University of the City :':':'::':';'e:';'::->.;*N:>;:.v:%:':':M%-; >":s:';*:'';'::s';:-:':n:';':-: :;;;:;i;;':;:;::vx;:s:::'-i:;::;::;;:;;;:;:ft':v::- '^':;':';>;-;;;;'::::v::';':;'S''''>:: %'.:•,,. V.!'. ■