The Study of Law
The Study of Law
Legal Tradition. The commonly expressed idea that America is “a nation of laws and not of men” traces its roots to the earliest of days of the nation, when the preservation of liberty was the foremost concern. The Founding Fathers understood that a people well educated in the law would have the tools necessary to maintain their hard-won rights. Moreover, in a time when political leaders struggled to join thirteen distinct jurisdictions into one coherent nation, the law was an important force unifying the former colonies. The system of justice that most people were familiar with was a haphazard adaptation of ancient common law principles which were created in an English political environment whose chief organizing idea was the largely unfettered power of the monarch. The development of a truly American system of law and justice was therefore essential if this great experiment in liberty was going to succeed. The way the law was taught and studied in post-revolutionary America evolved in the late eighteenth century in order to meet those needs.
PROPRIETARY LAW SCHOOLS
The Litchfield school served as a model for other proprietary law schools. It cost a student approximately $350 a year to attend—$100 for tuition and the remainder for room and board. On the average a pupil studied for fourteen months before graduating.
|Sources: Lawrence A. Cremin, American Education: The National Experience, 1783–1876 (New York: Harper & Row, 1980);|
|Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Mass.: Harvard University Press, 1977).|
|Van Schaack’s||Kinderhook, N.Y.||1786–1830|
|Staples||New Haven, Conn.||1800–1849|
“Dreary Ramble.” During most of the eighteenth century, there were two ways a young man could gain admission to the bar. The wealthy few could study in London at one of the Inns of Court, a mark of distinction shared by several prominent lawyers and jurists, including Supreme Court associate justices John Blair Jr. and John Rutledge. For most young men, though, the pathway to the bar required self-education and apprenticeship. An apprentice was basically a clerk to a practicing lawyer. A young man would pay a fee to become attached to a lawyer’s office and hope to learn as much as possible by observation and reading. The work delegated to an apprentice was often routine and tedious. Thomas Jefferson complained that “placing a youth to study with an attorney was rather a prejudice than a help” because lawyers would often shift mindless tasks on their apprentice clerks. In those days before typewriters, computers, and copy machines, apprentices devoted most of their time to transcribing routine legal documents and the rest to reading. This combination of copying documents and studying colonial statutes and ancient common law texts by such revered figures as Britain’s Lord Justice Edward Coke turned into what John Adams referred to as a “dreary ramble.” This highly unstructured American system was only as good as each individual tutor, and only as comprehensive as each student’s reading program. A serious reader like Thomas Jefferson, blessed with a tutor of the caliber of George Wythe, was more fortunate than most. On the other hand, Patrick Henry, one of the great trial lawyers of his day, did not even have the benefit of apprenticeship. He studied the law for a grand total of six weeks prior to his admission to the Virginia bar.
Blackstone. A major development in the study of law took place in 1772 when the first American edition of Sir William Blackstone’s Commentaries on the Laws of England (1803) was printed on a subscription basis. Approximately 840 Americans subscribed, purchasing over fifteen hundred sets priced at sixteen dollars a set. Among the first subscribers were Thomas Marshall (John Marshall’s father), John Adams, John Jay, George Wythe, and James Wilson. Blackstone quickly became the centerpiece of a young man’s reading program. A member of Parliament and professor of English law at Oxford University, Blackstone undertook the task of creating a guide to English law—an attempt to give order and clarity to centuries of largely uncodified common law. His Commentaries were considered much easier to read and understand than the four-part treatise by Sir Edward Coke, the Institutes on the Laws of England (1628–1644). Jefferson, who studied Coke in the years before the Commentaries were published, struggled with the Institutes, complaining that he was “tired” of the “old dull scoundrel” Coke. Jefferson eventually grew to admire Coke as a champion of the common law and the rights and liberties of the people and to despise Blackstone as the symbol of British parliamentary authority. Jefferson’s views were not shared by the majority of practitioners of the law, and by the time Tucker published his Americanized version of the Commentaries in 1803 Blackstone’s place at the center of the study of law in America was secure.
An American System. The ground was fertile for a new approach to the study of law. Yale College president Ezra Stiles wrote in 1777 that “it is scarce possible to enslave a republic of civilians, well instructed in their laws, rights and liberties.” The discipline of the law was viewed as an important pillar holding up the framework of liberty. Jefferson convinced the College of William and Mary in 1779 to establish the first professorship of law in America with Wythe, then a chancellor on the High Court of Chancery, to fill the post. Wythe was a trailblazer in organizing the study of law. He combined formal lectures with a focused reading program and encouraged the development of practical skills by the use of moot courts and mock legislatures. Students spent mornings reading Blackstone, David Hume, or Baron Charles-Louis de Montesquieu and then went to lectures and moot courts. The mock legislatures brought home the importance of the political process to the making of laws and the need for lawyers to understand and participate in that process. Wythe encouraged his students to change the laws to adapt them to their needs. His reading program exposed students to the great thinkers of Europe, men who challenged and questioned the status quo. His mock legislatures were designed to give his students the tools to adapt the laws to their own needs. Wythe’s combination of a lecture and reading program with the development of practical skills was not generally followed by other university professors of law, who preferred to limit their method of instruction to a more traditional series of lectures.
Wilson Law Lectures. One of the most prominent lecturers in the law was James Wilson, the Pennsylvania patriot who was also an associate Supreme Court justice. In 1790 Philadelphia lawyer Charles Smith proposed that the College of Philadelphia include a “law lecture or lectures” as a regular part of its curriculum. The trustees asked Wilson to deliver the lectures. As professor of law in the nation’s largest city and temporary federal capital, Wilson assumed the heavy task of devising a truly American legal system and a comprehensive, coherent framework for the study of law. He was uniquely prepared to undertake this ambitious effort, as his entire life had been devoted to a study of the law and its origins. On the evening of 15 December 1790 in Philadelphia Wilson stood before a large audience of some of the nation’s most influential citizens, including President George Washington and Vice President John Adams, and spoke of the two great American virtues: “the love of liberty, and the love of law.” Wilson forcefully argued that liberty and law were connected: without liberty, law becomes oppression; without law, liberty becomes licentiousness. No one, he warned, could truly love either the law or liberty without knowledge. The law, then, should “be the study of every free citizen and of every free man.” In Wilson’s concept of the new American republic it was the duty of every free man to study and understand the law and “know those duties and those rights.” Only by knowing the law could a man preserve his hard-won liberty.
Proprietary Schools. Wilson’s law lectures ended abruptly in 1791. His exclusive focus on philosophy and legal theory at the expense of the development of practical legal skills turned many prospective students away. The trend in legal education was toward a more structured environment offering a blend of academic experiences, similar to Wythe’s curriculum at William and Mary. The real proving ground for this new mode of legal education was the privately owned school of law, thirteen of which sprang up in America between 1784 and 1828. The most famous proprietary institution was Judge Tapping Reeve’s law school in Litchfield, Connecticut. Reeve’s curriculum in Litchfield was developed around a highly structured framework of lectures, readings, notebook writings, and moot courts. The maintenance of a comprehensive notebook was an important aspect of the training—requiring students to engage in independent thinking and enabling them to learn by repetition. This varied approach to the study of law enabled students to benefit from the best of the two prevailing pathways to a legal profession: the strictly academic aspect of lecture and reading and the practical skills-building aspect of notebook writing and moot courts. Each Saturday students were examined on the prior week’s work. Students were graduated after fourteen months of training. Entrance to the bar usually followed oral examination by prominent local jurists or lawyers who, persuaded of the knowledge and ability of the applicant, would grant admission to the bar.
L. B. Curzon, English Legal History (Plymouth, U.K.: Macdonald & Evans, 1979);
Lawrence M. Friedman, A History of American Law (New York: Simon & Schuster, 1985);
Charles Rembar, The Law of the Land (New York: Simon & Schuster, 1980).