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EARLY AMERICAN LEGAL EDUCATION

In early America, those who wished to pursue a career in law had limited opportunities for formal study. A few obtained training abroad, by studying at the English Inns of Court, and some may have studied Roman law at Oxford and Cambridge. Although most of the colonies rejected the stratified English bar of barristers and solicitors, legal tramining in early America largely followed the example of England. Law was considered a trade, and entry to the profession often required a period of apprenticeship, followed by a formal examination.

In England, the apprenticeship took place in the Inns of Court. In America, it was more often in the offices of a local attorney and required a substantial commitment of time. For example, in Massachusetts one was required to undergo a five-year apprenticeship prior to examination for the bar. Giving some recognition to the value of higher education, the apprenticeship period was reduced for college graduates, and the requirement varied widely among the different colonies, as it later did among the states. Sometimes these required periods of apprenticeship were overlooked, as in the case of John Adams, who, after completing his undergraduate education at Harvard, was not questioned about his mere two-year apprenticeship program with Massachusetts attorney James Putnam when he was presented for admission to the Massachusetts bar by several distinguished Boston practitioners in 1758. But Adams continued a course of prescribed readings after his bar admission and eventually became a successful colonial lawyer, and the second U.S. president. A host of other famous early American lawyers learned the law by apprenticing and reading in the office of a practitioner, including John Marshall, Patrick Henry, Thomas Jefferson, William Livingston, Daniel Webster, James Kent, and Joseph Story. Of course, John Marshall went on to become the nations fourth chief justice, while James Kent and Joseph Story eventually became celebrated commentators on the law and great legal educators for a generation of lawyers.

The training and attention given to apprenticing students was uneven at best. Working under the close guidance of a well-intentioned master of the law offered an opportunity for a superior legal education, but these students were often ignored or exploited. This was the experience of Joseph Story, who eventually became an associate justice of the U.S. Supreme Court and later the first Dane Professor of Law at Harvard. Justice Story apprenticed in the offices of Samuel Sewell, a distinguished counselor of law in Massachusetts, but the young Story was often left totally alone and ignored for up to six months at a time, as Sewell attended to business elsewhere, including his duties as a U.S. senator. Likewise, John Adams learned law largely on his own, although he was technically apprenticed to James Putnam. During his apprenticeship, Adams complained, "Now I feel the disadvantages of Putnam's insociability and neglect of me. Had he given me now and then a few hints concerning practice, I should be able to judge better at this hour than I can now." The ultimate professional success of both Story and Adams was due largely to their drive to learn law on their own by reading extensively through their masters' libraries. Indeed, it was access to a good law library that often brought apprentices to the offices of a particular lawyer, and the roots of some modern law schools can be traced from their libraries. Yale Law School, for example, began in the law offices of a New Haven lawyer named Seth Staples, who in 1800 boasted one of the finest law libraries in New England. Eventually, Yale acquired both the library and the law school, and a number of other law schools followed a similar path.

The course of study in an apprenticeship varied, but often consisted of extensive readings from a list of accepted texts. For example, John Marshall's apprenticeship with the highly regarded legal scholar George Wythe required him to first read Blackstone's Commentaries, a mainstay in early American law offices, followed by Coke on Littleton. He found Blackstone elegant, but the experience of reading the obsolete Coke on Littleton was so painful it actually brought Marshall to tears. Nevertheless, he eventually came to enjoy it. While hard to imagine, he claims to have plowed on with relish through repeated perusals of titles such as Saunders's Reports, and read with admiration intricate titles such as Fearne on Contingent Remainders and Executory Devises. He complained about the growth in legal materials, which required him to read more than his predecessors in order to master existing law, but the number of printed legal texts available then was trivial compared to what was soon to follow. Later in life, Marshall reflected back fondly on this period and credited the at-first painful readings with helping to discipline his lawyerly mind.

Thomas Jefferson, who like Marshall studied law for five years in the offices of George Wythe, understood that apprenticeship programs also were subject to abuse. In later correspondence Jefferson advised, "All that is necessary for a student is access to a library, and directions in what order the books are to be read." Jefferson then went on to suggest an entire library of readings for an aspiring lawyer, ranging from general studies in math, sciences, and languages to relatively specialized titles in law, together with the order in which they should be studied. Jeffersons course of study recommended spending six hours daily on reading law and another six to eight hours reading on related topics, such as history, politics, ethics, physics, oratory, poetry, and criticism, leaving little time for anything else in life, including sleep!

The success and popularity of some practitioners in apprenticing would-be lawyers led to the establishment of the first American law schools in the late eighteenth century. A number of local proprietary law schools opened during this period, but America's first law school with a national presence was rounded in Litchfield, Connecticut, in 1784. This law school operated with great success for nearly fitly years and served as a model for a number of other early ventures in American legal education. However, apprenticing with a seasoned practitioner remained the primary avenue for entry into the legal profession for the next one hundred years.

America's first university-based law program began in Virginia. In 1779, Thomas Jefferson appointed his former law tutor, George Wythe, as professor of law and police at the College of William and Mary, five years prior to the founding of the Litchfield Law School. Wythe remained in this post for twelve years, and the William and Mary law program continued to operate uninterrupted until the Civil War in 1861. Wythe was a highly regarded legal scholar and had tutored numerous aspiring young lawyers prior to this appointment to the post of professor. His approach to studying law broadly and his appreciation of Latin, Greek, and the classics made him a good fit for university legal education, where students undertook the study of law as part of a larger educational experience and not necessarily to pursue law as a profession. He also injected the flavor of his practice into his lectures, as he continued to be an active participant in Virginia's legal affairs.

A number of famous early American lawyers and statesmen studied under Wythe. In addition to Jefferson and John Marshall, his many students included Edmund Kandolf, James Monroe, and Henry Clay. Following the death of his wife and some unpleasant university politics, Wythe resigned from his teaching post at William and Mary in 1791 and was succeeded by St. George Tucker. In a rush to prepare quickly for his new role, Tucker took a short cut and based his lectures on Blackstone's Commentaries. Of course, the Commentaries had been prepared by William Blackstone for a similar purpose when Blackstone was appointed as the first Vinenan professor of English law at Oxford in 1758. Later, Tucker published his own annotated version of Blackstone's Commentaries, adapting them for contemporary American usage and contributing his scholarly input for the broader use of the legal community. Also under Tucker's reign, the first known American law degree was finally awarded at William and Mary in 1793, to William H. Cabell, who later became governor of Virginia and presiding judge of the Virginia Court of Appeals.

The influence of the legal education program at William and Mary quickly spread to other colleges and universities, with the creation of similar professorships in law. For example, in 1799, Transylvania University in Kentucky appointed one of William and Mary's graduates, George Nicholas, as professor of law and politics. The Transylvania program continued throughout much of the nineteenth century, at times flourishing. During the same period, professorships in law appeared at a number of other American universities, including most significantly the appointment of James Kent to professor of law at New York's Columbia College (now Columbia University) in 1794.

Kent launched an ambitious series of law lectures at Columbia, but it's fair to say he was a failure as a teacher, as students quickly stopped signing up for his lectures after the first term. Some said his lectures were too professional to attract and hold the attention of an audience of mostly undergraduate students and too academic for members of the practicing bar. When no students appeared for his third semester of lectures, Kent resigned from his teaching post and soon began a distinguished career as a judge. Kent joined the New York Supreme Court in 1804, and a decade later was appointed chancellor of New York. While on the bench, Kent contributed immensely to the development of systematized court reporting in the U.S., including the practice of submitting written opinions for every case that came before him, during a period when written judicial opinions were rare. When he left the post of chancellor in 1823, his published series of Chancery Reports influenced the development of equity law across the nation and set a new standard for court reporting. Chancellor Kent returned to Columbia in 1824 in a brief attempt to revive his lectures, but lasted only two years and did not lecture again after 1826. While Kent's name remained in the Columbia catalog until his death in 1847, like fellow law professor St. George Tucker at William and Mary, Kent's primary impact on legal education was through his scholarship. Using his lectures as a basis for more expansive scholarly endeavors, Kent published a four-volume set of Commentaries on American between the years 1826 and 1830. This was a hugely ambitious work and has been compared in scope to Justinian's Institutes and Blackstone's Commentaries. Numerous editions were published here and abroad, and this work was immensely influential on the subsequent development of American law.

 

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