Professions: Lawyers

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Professions: Lawyers

The making of the legal profession in the new American nation took place largely in the law courts. Lawyers established bar associations comparable to the contemporary medical societies and ministerial associations, and they set up a variety of educational enterprises to train students for the profession. However, these institutions proved to be short-lived and were clearly outweighed by the courts in forming the bar. Unlike the work of doctors and ministers, lawyers' day-to-day work brought them together in a spectacular forum where they could contend, collaborate, fraternize, and develop the cohesiveness of common customs of the law. It was particularly in the circuit courts, formed during the eighteenth century in the colonies in rough imitation of the English nisi prius system, that such professional bonds were formed. Through such courts some of what was then called the king's justice was brought to the provinces. In both England and America, the judges and lawyers of these superior courts on circuit usually traveled, ate, lodged, and caroused together, and the agreeable good fellowship of this experience was acclaimed on both sides of the Atlantic.

Much of the impetus for setting up the higher courts in the American colonies came from British policy. The attempt to assert control over the colonies and bind them more closely to the mother country predisposed British officials toward measures of centralization. This was particularly true of the superior courts, where judges were usually appointed on the approval of the king. The higher courts quickly adopted some of the pageantry, technicality, and doctrine of the courts of Westminster. Chief Justice Hutchinson of Massachusetts introduced the distinction between barrister and attorney, permitting only barristers to plead before the superior court. Such barristers were chosen from among the most learned and respected attorneys in the province. Where ranks were adopted in the other colonies (New Jersey went farther than most in setting up the grade of sergeants as well), the upper ranks were also usually distinguished homegrown lawyers. Only in South Carolina did most of the barristers who prevailed in the higher courts actually attend the Inns of Court in London. Where distinguishing titles were not adopted, as in Maryland and Pennsylvania, the gap between the attorneys who gained a hold on practice in the higher courts and those who worked amid the simpler, less polished justice of the country courts widened sharply. When Massachusetts higher courts took up wearing legal gowns and wigs, the New York Supreme Court quickly adopted the costume, and the practice spread throughout the colonies. Even Patrick Henry, scorned by Jefferson for his triumphs before amateur judges and rural juries of local courts, knew enough to discard his buckskin for dignified black dress and a freshly powdered wig when he came before the General Court of Virginia.

Moreover, these higher courts brought with them not only rank, pageantry, and a new observance of technical matters, they also provided a forum for the consideration of principles of social order usually designated under the heading "fundamental law." Initially, this legal concept dealt primarily with persons and their property. However, during the upheavals of seventeenth-century England, it was given broad political meanings. This was the legacy of Sir Edward Coke, a lawyer skilled in the crabbed scholarship of feudal holdings and at the same time a man of affairs active in the great political contests of the day. His Institutes enjoyed an extraordinary reputation among the learned and ambitious American lawyers. In arguing that the common law, which embodied fundamental law, placed limits on royal prerogative and seemingly on the powers of Parliament, Coke identified the services of the common law with the blessing of liberty. Fundamental law consequently moved closer to that homologous notion of the era, "the constitution." This did not refer to any particular document but rather to a body of fundamental principles revealed in a long series of accepted customs, statutes, and judicial decisions. It was what Jefferson meant when, in 1776, he charged that the king subjected the colonists to a "jurisdiction foreign to our constitution." Both the constitution and fundamental law were held to be invaluable defenders of liberty. Furthermore, for many eighteenth-century American lawyers, liberty became, in Daniel Dulany's overcharged words, "salvation in politics."

Liberty, famously, was one of the watchwords of the American Revolution. During that conflict and its aftermath, delegates in the various colonies set up new rules of governance, fusing the concepts of constitution and fundamental law in written documents set out in statutelike form. The framers of the federal Constitution of 1787, most of whom were lawyers, went even farther in describing their work, within the text itself, as "the Supreme Law of the Land." In construing this Constitution as law, the framers provided the momentous option of interpreting and enforcing the fundamental principles of national government through routine judicial processes. The legal profession, therefore, could become an ex officio interpreter of the national credo. Yet such lofty interests were mixed with the most matter-of-fact enterprise in the workaday world of American lawyers in the post-Revolutionary era.

Both the conservative and transformative lineaments of the Revolution became apparent in the workings of the legal profession. The rankings in the profession, reflecting the aristocratic conceits of English traditions, quickly collapsed. The usages of attorneys, with their apprenticeship training, fee-bills to set the standard of payment, and direct dealings with clients (but, in America, with the right of audience in all courts), became the general characteristics of American lawyers. The English common law, somewhat simplified and adapted to local conditions, remained the basis for legal practice in the courts. The most transformative effect of the Revolution was indirect. As the French Revolution provided the basis of a new social order by the confiscation and sale of the lands of the church and the émigrés, so in a somewhat analogous manner the American Revolution provided the basis of a society of medium-size property owners through the confiscation and sale of the lands of the Native Americans. The social transformation was less apparent in America than France because the church and the aristocrats were preeminent in France whereas the Native Americans were on the margins of American society. Nonetheless, after the War of 1812, when the Indian "barrier" was largely removed, the wide-ranging characteristics of a society based on medium-size landownership became apparent. This was clearly visible in the North, though obscured in the South by the relatively small class of splendiferous plantation owners at the top of society and the large class of black slaves at the bottom. American lawyers were prime agents in setting up and maintaining the rules for this new social order.

Land law became a principal part of the lawyer's day-to-day business. Know-how about the trial of title to land, ejectment, trespass, writs of entry, and remedies for the recovery of real property became essential skills. Men with land to sell came to county courthouses during trial days, and litigation over estates and inheritance brought marketable land into lawyers' hands at other times as well. Lawyers were not only agents but sometimes venturers themselves. The papers of eighteenth-century and early-nineteenth-century lawyers often hold as many documents relating to their own real estate activities as to their legal cases. For some lawyers bold speculation on the fundamental principles of government was accompanied by bold speculation in land. James Wilson, for example, pursued an illustrious career in law and politics that took him from the Revolutionary struggle against Britain to the deliberations of the Constitutional Convention and to a position on the new Supreme Court. Perhaps the acme of that career was his public lectures delivered on American government and fundamental law before an audience that included President Washington, Vice President Adams, and leading members of Congress. Yet shortly after he was at the nadir, dying ignominiously in the Carolina backwoods, hiding from the creditors of his land speculations.

Aside from the land market and the legal practice that accompanied it, the other growth industry that created opportunities for lawyers was the development of democratic politics. With the spread of republican institutions, producing many new elective offices, the lawyers who found that they were adept at swaying juries seemed equally adept at swaying electorates. Men of legal training soon came to predominate in American government. Entry into law and politics became increasingly open to men of native wit and cunning though they might have little formal education and meager income. Yet the legal profession seemed to provide something akin to a homespun elite. William Wirt, son of a tavern keeper who rose to the position of the attorney general of the United States, claimed that men of talents in this country were generally bred to the profession of the law: "I have met with few persons of exalted intellect whose powers have been directed to any other pursuit." In the more egalitarian age that was to come, Alexis de Tocqueville, one of the most perceptive of the many foreign visitors who flocked to this country, commented with some amazement that the American lawyer seemed to be a peculiar kind of aristocrat particularly congenial to democracy.

bibliography

Friedman, Lawrence M. A History of American Law. 3rd ed. New York: Simon and Schuster, 2005.

Gough, J. W. Fundamental Law in English Constitutional History. Littleton, Colo.: F. B. Rothman, 1985.

Haber, Samuel. The Quest for Authority and Honor in the American Professions, 1750–1900. Chicago: University of Chicago Press, 1991.

Mullett, Charles F. Fundamental Law and the American Revolution, 1760–1776. New York: Octagon Books, 1966.

Nelson, William E. Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830. Cambridge, Mass.: Harvard University Press, 1975; Athens: University of Georgia Press, 1994.

Samuel Haber

Encyclopedia of the New American Nation