Lawyers

Law was the profession of most of the leading political figures of the early republican United States. Indeed, the “nation of laws” was almost a “nation of lawyers.” More than a third of the members of the First Congress were members of the bar, as were four of the first five presidents of the United States (John Adams, Thomas Jefferson, James Madison and James Monroe).

The large number of lawyers in the early republic resulted in part from the relative ease with which one could enter the profession. The College of William and Mary, at Thomas Jefferson’s prompting, established the nation’s first dedicated law professorship in 1779, and the first law school in the United States was founded in 1784 (in Litchfield, Connecticut by Litchfield lawyer Tapping Reeve). But institutional learning was not the means by which most attorneys learned their trade. Instead, most “read” law in the offices of practicing lawyers, copying documents, serving process, and drafting simple forms. The quality of the instruction these aspiring lawyers received depended on the knowledge and attentiveness of the sponsor. Moreover, apprentices were subject to abuse: Jefferson complained that he had “ever seen that the services expected in return [for instruction] have been more than the instructions have been worth.” Nevertheless, by the Jacksonian era, reading law was almost universal. Some aspiring lawyers might supplement time in a practicing attorney’s office with formal institutional instruction. John Marshall, for example, spent six weeks studying law at the College of William and Mary, much of which he appears to have devoted to pining for his soon-to-be wife, Mary Ambler. Most, however, did not. Apprentices supplemented their office work with outside reading. The standard texts were English. Sir William Blackstone’s Commentaries on the Laws of England was the most popular. Other popular English legal treatise writers included Sir Edward Coke and Henry Bracton.

The completion of an apprenticeship, or an academic program, did not guarantee one the right to practice law. The practice of law was rather tightly regulated under the British Empire, and after the Revolutionary War (177583), licensing restrictions continued. Admission to practice before the courts of a particular state was a matter of state law and requirements varied widely, even among courts within a particular state. In 1783, for example, the New York Supreme Court required that practitioners have three years apprenticeship experience, be of good moral character, and pass an examination. In 1797 the court increased the required years of apprenticeship to seven, but allowed that four of these might be satisfied by years devoted to the study of the classics. Most courts also required applicants for admission to demonstrate they were of good moral character and loyal to the state.

Once admitted to practice, lawyers had to prove themselves in order to win clients. Interestingly, in addition to its many other profound effects, the American Revolution had an enormous impact on the style of legal advocacy. Most cases today are won by lawyers who understand precedent— past instances in which the courts have considered the questions they are arguing—and are able to persuade that court that the same or a different rule ought now to apply. In other words, success at the practice of law depends on one’s ability to out-research one’s opponent. Before independence, lawyers succeeded by mastering the precedential decisions handed down by English courts. In the courts of the new states, however, references by lawyers to decisions of English judges were not always well received. Lawyers consequently turned more to creative analogy, common sense, and references to the classics in arguing cases. This tendency is evident in the Supreme Court opinions of John Marshall, who issued his most important pronouncements, including Marbjjry v Madison, with barely a nod to precedent. The move away from reliance on precedent further democratized the legal profession in that young lawyers with limited library access but common sense could still win cases.

Despite their contributions to the cause of independence, lawyers were not the most popular class in the United States. This lack of popularity resulted in part from the perception that lawyers were part of a conspiracy to manipulate the common law. The common law, which evolved in England and which applied in all of the new states, was judge-made law. When parties appeared before a court with a dispute, the court would look not to acts of the legislature, but to precedent and the court’s own sense of fairness in deciding the case. A complicated vocabulary developed to explain the court’s reasoning, as did an elaborate system of writs and motions that had to be filed to initiate a lawsuit and keep it going. Legal education consisted in large part of learning the vocabulary and procedures. Complexity was increased by the fact that much of the terminology was in Latin or legal French. Law was thus inaccessible to nonlawyers, and this seemed to many flatly antidemocratic. In the Revolution’s immediate aftermath, a movement was started to abandon the common law in favor of the civil law system embraced by most European countries. In civil law countries, the law is written down, and nonlawyers as easily as lawyers can look it up in a civil code. Opposition from the bar—the members of which had devoted long years to mastering the complexities of the common law—and from many who saw advantages to the common law system (in particular, that life was too complicated to cover all situations in a written code) defeated the move to abandon it. The United States would remain a common law country, its dispute resolution mechanisms largely inaccessible to nonlawyers.

Further reading: Robert F. Bowden, The Colonial Bar and the American Revolution (Chicago: Callaghan, 1976); Anton-Hermann Chroust, The Rise of the Legal Profession, vols. 1-2 (Norman: University of Oklahoma Press, 1965); Gerald W. Gawalt, The Promise of Power: The Emergence of the Legal Profession in Massachusetts, 1760-1840 (Westport, Conn.: Greenwood Press, 1979); A. G. Roeber, Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680-1810 (Chapel Hill: University of North Carolina Press, 1981).

—Lindsay Robertson