On the Battlefield of Merit

Harvard Law School, the First Century

Daniel R. Coquillette, Bruce A. Kimball

• Editore: Harvard University Press
• Anno: 2015
• ISBN:
  9780674495685
• Argomento: Derecho
• Categoria: Historia jurídica

Harvard Law School is the oldest and, arguably, the most influential law school in the nation. U.S. presidents, Supreme Court justices, and foreign heads of state, along with senators, congressional representatives, social critics, civil rights activists, university presidents, state and federal judges, military generals, novelists, spies, Olympians, film and TV producers, CEOs, and one First Lady have graduated from the school since its founding in 1817.During its first century, Harvard Law School pioneered revolutionary educational ideas, including professional legal education within a university, Socratic questioning and case analysis, and the admission and training of students based on academic merit. But the school struggled to navigate its way through the many political, social, economic, and legal crises of the century, and it earned both scars and plaudits as a result. On the Battlefield of Merit offers a candid, critical, definitive account of a unique legal institution during its first century of influence.Daniel R. Coquillette and Bruce A. Kimball examine the school's ties with institutional slavery, its buffeting between Federalists and Republicans, its deep involvement in the Civil War, its reluctance to admit minorities and women, its anti-Catholicism, and its financial missteps at the turn of the twentieth century. On the Battlefield of Merit brings the story of Harvard Law School up to 1909—a time when hard-earned accomplishment led to self-satisfaction and vulnerabilities that would ultimately challenge its position as the leading law school in the nation. A second volume will continue this history through the twentieth century.

1

The English and Continental Roots of American Legal Education

The founding of Harvard Law School, though a radical idea and a new departure in legal education, hardly occurred in a vacuum. To appreciate its significance, indeed to appreciate all of the crucial ideological changes in the Law School’s first century, we need to know what came before. Hence, we need to consider Frederick Maitland’s famous web. “Such is the unity of all history,” Maitland wrote, “that anyone who endeavors to tell a piece of it must feel that his first sentence tears a seamless web.”¹ No matter where we start this book, we will sever the web of Western legal culture.

Charles Warren addressed this problem in his History of the Harvard Law School by including no fewer than fourteen chapters before he actually arrived at the founding of the school, and Arthur Sutherland began his history of the Law School with Justinian’s Institutes of 533 AD before exploring the contributions of Ranulf de Glaville (c. 1189) and Henry de Bracton (c. 1230).² Instead, this chapter will focus on the European background that is essential for understanding the significance of the events of 1817. The fundamental point is that two legacies from across the Atlantic exerted a powerful influence during the infancy of American legal education: the English common-law profession and Continental civilian learning derived from Roman law.

Transatlantic Legal Culture

The American colonial period is defined by the distinctive religious, intellectual, political, and legal cultures of the little societies clinging to the western edge of the vast Atlantic Ocean. Of course, the flotilla of tiny ships, led by the Arbella, carried English law books to the Massachusetts Bay Colony in 1630. Richard Bellingham had a Glanvil in his luggage, and Governor John Winthrop had an English legal education in his head. The leaders of the Massachusetts Bay Colony sent in 1647 for a copy of Edward Coke’s Institutes and Reports, and Harvard College had Justinian’s Institutes in its library, probably by 1645.³ But what emerged from the Cambridge Printing Press, up and running by 1638, had no resemblance to anything seen in Europe before. The Capital Laws of New England (1641) cited for authority only to the Old Testament, and the Massachusetts Lawes and Libertyes (1648) was a compilation of colonial statutes. In other colonies, nothing resembling English law reports or treatises would emerge until just before the Revolution, nearly 150 years later.⁴ Out of five generations of separation came an indigenous legal profession as well as an indigenous system of legal education: American apprenticeship.

So it could be argued that the seventeenth-century settlement of the colonies, particularly South Carolina, Georgia, Pennsylvania, Virginia, New York, Rhode Island, and Massachusetts, represents as good a place as any to tear Maitland’s web. Certainly the influence of the English Inns of Court on the colonies was marginal and, considering the deplorable state of the inns in the eighteenth century, doomed to irrelevance.⁵ The contemporary accounts of young gentlemen, often from wealthy Anglophile Southern families, give us no cause to doubt this thesis, and few colonists studied in the great universities.⁶ A learned American bar emerged slowly through the late seventeenth and eighteenth centuries, and even in sophisticated colonies a meaningful, self-conscious elite was largely absent until the late 1750s.⁷ Thus, we must look to native apprenticeship for the direct antecedent of American university law schools.

But there were two great forces that bridged the Atlantic: the influence of books and the cultural identification of the colonists as English. The language, literature, and cultural morés of early colonial legal elites were, in part, driven by a denial of political facts and geographic reality. Massachusetts chief justice Thomas Hutchinson, in 1768, directed the few members of the elite bar to wear the wigs and gowns of barristers and to establish a bifurcated hierarchy of barrister and common attorney—although nothing existed in Boston that vaguely resembled the guilds of the bar in London or legal education in England, be it common law or civilian.⁸ Even though the Massachusetts Superior Court of Judicature, established by the Second Charter in 1692, rarely permitted the theoretical rights of appeal to the Privy Council in London, Massachusetts lawyers talked about English law as “the law at Home.”⁹

Further, while the American colleges taught Latin, Greek, and Hebrew primarily to educate a learned clergy, the result was a bar that could read the classics in Latin, and often Greek, with surprising fluency. Recent research has shown the importance of Roman law models to leading colonists, even in the seventeenth century. Justinian’s Institutes and Cicero were not just volumes in the Harvard College Library, but part of the genuine literary culture of the American bar. Those threads of Maitland’s web ensured the influence of Continental legal culture, as seen in the legal education of John Adams, Josiah Quincy Jr., and Joseph Story.¹⁰

The direct antecedents of the school lay not in Europe, but in indigenous legal training. Nevertheless, English and Continental legal culture influenced the emerging American bar and, ultimately, Harvard Law School, because that culture was always as near as their bookshelves. The American web contained many strands of the old, but arranged in a new pattern.

The English Heritage

Even before the two ancient English universities, Oxford and Cambridge, were founded at the end of the twelfth century, law was being taught in the academic communities gathered in those two towns. At Oxford the study of law dates from the lectures of Vacarius (c. 1115–c. 1200), a Lombard who may well have studied at Bologna, the site of one of Europe’s oldest law schools. As early as 1149, he delivered lectures on Justinian’s Institutes at Oxford, and his Roman law text for “poor students” is certainly one of England’s earliest law books.¹¹ By the founding of the American colonies, Roman and canon law had been taught at Oxford and Cambridge for five centuries.

But here is the rub. English common law—the law of the English royal courts, “common” to the various shires and administered by Norman-Plantagenet officials—was not taught in the English universities until 1753. Even at that point, when William Blackstone began lecturing on the common law as the first occupant of the Vinerian Chair at Oxford, he treated his subject as a gentlemanly liberal art that had little connection with the actual complexities of legal practice. To the extent that university legal study served as professional education, it addressed only Roman and canon law and prepared students narrowly for a career in the church or international diplomacy.¹²

The earliest common-law legal education in England—training in how to actually practice law in the common-law courts—was always kept apart from Oxford and Cambridge and centered instead in the professional guilds in London. An occasional genius, such as Sir Francis Bacon, would lament the “ill-starred divorce of theory and practice” in English legal education, but for more than seven centuries that separation persisted.¹³ Some direct consequences of that old divorce are still with us, namely, oversight of legal training in America by the courts and by powerful, private bar associations, which include that very same judiciary as members.

By tradition, we owe the professional and judicial control of American legal education to King Edward I. He makes a good founder, if mythical. Edward I was perhaps the most majestic of all English kings. Tall, powerful, and blond, he was a great soldier, the Hammer of the Scots. But his foreign wars and conquests kept him perpetually in need of tax money and good administrators, and he saw early on that lawyers were the key to both. During Edward’s reign (1272–1307), a major effort was made to reform the feudal customary law by legislation and to place the emerging systematic legal education under the supervision of the royal courts. In 1292 a royal writ was issued to the Court of Common Pleas: “Concerning attorneys and learners [“apprentices”] the lord King enjoined Mettingham and his fellows to provide and ordain at their discretion a certain number … of the better, worthies and more promising students” so that those “chosen should follow the court and take part in its business and no others.”¹⁴

The Writ of 1292 is still regarded by many as the origin of judicial authority over legal education, though the writ was probably just an effort to control the number of attorneys and not intended to have a permanent effect.¹⁵ In any case, judicial control over legal education was subsequently shared not with the executive or the legislature, but with the profession itself. This medieval writ from feudal England has not been forgotten at Harvard Law School or any American law school today. American law school accreditation, at least in theory, is governed by court-appointed boards and by court rules that limit bar admission, rather than just by academic boards or by executive or legislative regulation.

One might argue that most state supreme courts have essentially delegated the accreditation process to a private professional organization, the American Bar Association (ABA) Section on Legal Education, by adopting ABA accreditation. This accreditation is now usually joined with accreditation by the American Association of Law Schools, a professional organization representing another powerful guild, law schools and their professors.¹⁶ But that, too, is a centuries-old English tradition. As early as 1350, hospices or “inns” in London began to cater to the very “apprentices in law” referred to in the Writ of 1292. From the beginning, these inns began to metamorphose into a system of private education and, eventually, into powerful professional guilds.

These guilds would monopolize both common-law legal education and bar admission. Not subject to the government, courts, clients, or commercial interests, they would begin to define the ideals of the English and American bar. Even today, in a profession dominated by the ideal of zealously representing one’s client, lawyers have two other competing roles. These are the “officer of the court” role, which sees the lawyer as an agent of the official justice system, and the “professional” role, which sees the lawyer as a member of a self-regulating profession quite distinct from both government and client interests. This latter professional role was shaped by the legal inns of London for more than four centuries.

The legal inns were, originally, inexpensive hospices where students studied, lived, and ate near the law courts and the legal life of the city. The inns had three historic tiers. The lowest were the Inns of Chancery. They were really prep schools for boys preparing for study at the more powerful Inns of Court, and each was connected to one of the four Inns of Court. Thus New Inn, an Inn of Chancery, was attached to Middle Temple, an Inn of Court; Barnard’s Inn and Staple Inn were attached to Gray’s Inn; and so forth.¹⁷ We are still discovering more about the living conditions in these “junior inns,” but they obviously taught some very basic law. Ultimately, the growing power of the four Inns of Court and their efforts to limit membership to barristers, as opposed to “attorneys” or solicitors, led to the Inns of Chancery becoming a center for the latter group and then deteriorating during the eighteenth century. None survived the 1800s, and today a few architectural traces are all that survive of these “forgotten Little Colleges of law.”¹⁸

In sharp contrast, the four Inns of Court—Gray’s Inn, Lincoln’s Inn, Inner Temple, and Middle Temple—not only survived, but became immensely wealthy, occupying vast stretches of prime London real estate. In theory, they still control admissi...