USA > Massachusetts > Suffolk County > Boston > Metropolitan Boston; a modern history; Volume I > Part 30
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Two things stand out from this brief story of Federal court organiza- tion-first, the usual slowness in the growth of a legislative policy re- lating to courts which would have enabled them to meet more effectively the demands of the business of the people whom they were created to serve ; second, the feature of elasticity in the use of judges in the various courts, whether for appellate or nisi prius work. A history of the various Circuit and District Court Reports prior to the Federal Reporter System, and much biographical information will be found in Volume XXX of the "Federal Cases."
The Judicial Independence of John Davis and Joseph Story-In view of the current criticism of the courts in general, the following striking instances of judicial independence, mentioned by Hon. Charles Warren in his address before the Massachusetts Bar Association at Salem in 1922, will bear repeating here, as they are a credit to the First Circuit, and illus- trative of what is meant when it is said that the system of appointment during good behavior encourages and protects judicial independence.
On October 8, 1808, in the courthouse in Salem, a decision was rendered which prob- ably affected the history of the Nation to a greater degree than any judicial opinion ever rendered in this Commonwealth.
John Davis, Judge of the United States District Court, was .... an ardent and active Federalist, appointed by President Adams. All his friends and judicial associates were Federalists. Before him, there was argued the question of the constitutionality of Jefferson's Embargo Law, a measure detested and abhorred by the Federalists of this State, against which the State had risen in open revolt. .
Strong in his judicial integrity, though amid the opprobrium of all his party asso-
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ciates, Judge Davis resisted all influence, and rendered a judgment sustaining the consti- tutionality of the law, in an opinion so conclusive that it settled the question forever. It is interesting to surmise the strain to which the Judge's conscience would have been sub- mitted, had the judge been a candidate for reelection at the Presidential election which took place, just one month later, in Massachusetts, that fall. (See Remarks of Franklin Dexter on the Resignation of Judge Davis, I Story 619-20, also Memoir of John Davis, by Rev. Convers Francis, Mass. Hist. Soc. Coll., Vol. X, 3rd Series, 1849, p. 186.)
The act of Judge Story referred to was as follows :
Story had been appointed by President Madison on the Supreme Court, only ten months previous. He was a young man of thirty-three years of age. The War of 1812 had begun, and the Administration was vitally interested in prosecuting and convicting the cases of Americans who had been guilty of unlawful trade with the enemy, England. Such a case came up before Judge Story, in which the defendant pleaded that a proclama- tion of President Madison reviving an embargo law, under which the indictment had been found, was illegal. Judge Story was thus called upon to decide the legality of an action of a President who had just appointed him to office, and upon its legality as bearing upon a class of cases in which the president and his administration were vitally desirous of obtaining convictions.
Story, in spite of his youth and his personal and political predilections, without hesi- tation held the action of the president to have been illegal, and the prisoner went free. "For the Executive Department of the Government, this Court entertain the most entire respect," said the judge, but "it is our duty to expound the laws as we find them in the records of state; and we can not, when called upon by the citizens of the country, refuse our opinion, however it differs from that of very high authorities. I do not perceive any reasonable ground to imply an authority in the President to revive this Act, and I must, therefore, with whatever reluctance, pronounce it to have been, as to this purpose, invalid."
When one recalls the fact that a national election was to take place that very fall in Massachusetts, and that administration forces might well have been arrayed against a judge who gave such a decision, had he been subject to the elective franchise, one may rejoice that Federal Judges are not subject to such possibilities. (See Mass. Law Quart., Dec., 1922.)
The Story of the Harvard Law School *- Reference has already been made to the great public necessity of sound legal training, and Massachu- setts has led in the development of great law schools throughout the country.
On May 26, 1778, Isaac Royall, a wealthy citizen of Massachusetts, then resident in London (he strenuously denied that he was a Tory ref- ugee), made his will, and in it provided for "a Professor of Laws in (Har- vard) College or a Professor of Physick and Anatomy, whichever the said Overseers and Corporation shall judge to be best for the benefit of said College." Royall died in 1781; but it was more than thirty years before the Corporation got together the proceeds of this legacy. Before 1815 they succeeded in collecting a sum of money which, with accrued
*See "Centennial History of the Harvard Law School," pp. 2-36.
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interest, amounted to about $7,500. On August 18, 1815, the Royall Pro- fessorship of Law was established, and Isaac Parker, Chief Justice of Massachusetts, was elected to the office. .
No English or American university had created a distinct school or faculty of law, but only professorships of law. With two professors of law teaching a body of students separately registered, the Harvard Law School was the first university school of law, as it is the oldest law school now existing, in any common-law country. To be sure, its imposing faculty of law was a bit misleading. For the twelve years of his incum- bency, Judge Parker had no closer direct connection with the Law School than was afforded by the attendance of the students at his lec- tures and a vague understanding that he was occasionally to visit the school and examine the men. The working member of the faculty was Asahel Stearns.
But the new venture in education needed men with vision to see and skill to bring to pass the possibilities of university study of law in Amer- ica. Neither Stearns nor Parker had just the skill or the vision. The number of students, never large, toward the end of the period rapidly decreased. The university suffered the mortification of seeing her most promising sons seek legal training in an office instead of in her school of law. . .. They had only opened a lawyer's office to students, had superintended their reading, furnished their books, and talked to them about various branches of law. With the resignation of Stearns this ex- periment came to an end forever in this country ; and some more scholarly and helpful method had to be invented for giving students legal instruc- tion and training.
Nathan Dane was a distingushed lawyer of Massachusetts, former member of the Continental Congress, author of the "Ordinance for the Government of the Territory Northwest of the Ohio," and prominent Fed- eralist politician. He began in 1800 and finished in 1826 the publication of his "Abridgment of American Law," a work which then became indis- pensable to an American lawyer, and still has a value for its reports of early American cases not to be found elsewhere. In the preparation of this work he was following the example of the great English lawyer, Viner, whose Abridgment was yet authoritative.
Viner had founded the Vinerian Professorship of English Law at Oxford from the royalties of his book; . . Dane . . . followed the earlier example of the Englishman . . . and established a professorship of American law at Harvard from the proceeds of his Abridgment. He devoted $10,000 to the foundation, and desirous of stimulating legal authorship like Viner, he provided that the lectures delivered on the foundation should be published. Story's series of "Commentaries,"
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Greenleaf's "Evidence," Parsons' well-known works, and Langdell's pub- lished writings have all been issued in compliance with this provision.
The Corporation accepted the gift on June 3, 1829, and appointed as first Dane Professor Joseph Story, whom Dane had nominated. Story had been a justice of the Supreme Court of the United States since 181I.
About 1830, the school and library occupied about two rooms. The need of a new building was great. Dane again came to the rescue. He had intended to leave the amount needed for the purpose as a legacy to the school, but, appreciating its immediate requirements, he advanced the money during his lifetime. He thus had the satisfaction of seeing the school properly housed three years before his death, in 1835, at the ripe age of ninety-two. On September 24, 1832, the "Dane Law College" was dedicated, to continue as the home of the school for more than fifty years.
Behind a great institution there must always be a great personality ; and such was Story. His position in the highest court in the land, his esteem among lawyers throughout the Nation, first brought him students ; but his geniality, his affectionate dignity, his enthusiasm for the school and all connected with it, the interest and the authority of his somewhat desultory teaching, all combined to secure its coherence and growth. He found it a lawyers' office, bereft, as he asserted, of students; he left it established and important, the accepted model of schools of law wherever the common law prevailed.
Judge Story died in 1845, and his death threw upon Simon Greenleaf the whole burden of instruction. Greenleaf had taught there since 1833. He resigned in 1848.
For the next twenty years the three leading figures in the school were Theophilus Parsons (son of the Chief Justice already referred to), Joel Parker, who had been Chief Justice of the Supreme Court of New Hamp- shire, and Emory Washburn, at one time Governor of Massachusetts. At the end of this period a critical situation was faced by Charles W. Eliot, then recently chosen president of the university, and he met it by the selection of Langdell.
The Appointment of Langdell and Its Influence-The appointment of Christopher Columbus Langdell to succeed Parsons, was a personal act of the new president. Eliot himself has stated the reason for his choice. Twenty years before, when the new president was a junior in college, he used to go often in the early evening to the room of a friend who was in the Divinity School. "I there heard a young man who was making notes to 'Parsons on Contracts,' talk about law. He was gen- erally eating his supper at the time, standing up in front of the fire and eating with good appetite a bowl of brown bread and milk. I was a mere
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boy, only eighteen years old; but it was given to me to understand that I was listening to a man of genius. In the year 1870 I recalled the re- markable character of that young man's expositions, sought him in New York, and induced him to become Dane Professor. So he became Pro- fessor Langdell." Langdell was at this time a rather obscure though far from unsuccessful lawyer in the city of New York; member of a firm which gave to the United States an attorney-general and a district judge, but himself known chiefly to a small circle of lawyers. Heretofore, in selecting a professor, the object of the Corporation had been to secure a man of mark, whose prestige would increase that of the school; a man who, by long practice in the law, had become familiar with the content of it. The principle which underlay Langdell's selection was quite other ; as he himself explained, a teacher of law should know expertly not so much the content of the law as the method of studying it. "What quali- fies a person, therefore, to teach law is not experience in the work of a lawyer's office, not experience in dealing with men, not experience in the trial or argument of causes-not experience, in short, in using law, but experience in learning law. . . ."
For a long time the wisdom of this change remained doubtful in the mind of the American bar. As a protest against it, the Law School of Boston University was founded, having on its faculty eminent members of the Boston bar, and for many years it was regarded as a more prac- tical school for lawyers than the Harvard Law School. Not until Ames' appointment as assistant professor in the year 1873 can it be said that the new method of appointment was accepted even at Harvard.
The year 1873-74 marks the appointment of two of the teachers whose services to the school were a large factor in its success. James Barr Ames was appointed assistant professor of law June 2, 1873, and James Bradley Thayer became Royall Professor of Law on December 8, 1873.
The appointment of Ames created even more surprise than that of Langdell. He was a recent graduate of the school, without experience in practice, but he had won considerable success as a teacher in Harvard College. President Eliot, in explanation of the choice, said that it would not be surprising if young teachers could do a portion of the work of in- struction better than older men. The Corporation and the Board of Overseers gave their consent with reluctance, but the success of the young man then in question abundantly justified the president's explana- tion. "What is to be the ultimate outcome of this courageous venture?" asked Eliot, fifteen years later: "In due course, and that is no long term of years, there will be produced in this country a body of men learned in the law who have never been on the bench or at the bar but who never- theless hold positions of great weight and influence as teachers of law,
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as expounders, systematizers and historians. This, I venture to predict, is one of the most far-reaching changes in the organization of the pro- fession that has ever been made in our country."
Langdell's skill as administrator-a skill which remade the school in every important particular-is overshadowed and almost forgotten by reason of his services to legal education in the invention of the new method of study and teaching, which bears his name. This he appears to have worked out while he was a student in the school; and with the opening of the first year of his service as professor, in the fall of 1870, he put it into operation.
The day came for its first trial. The class gathered in the old amphitheater of Dane Hall-the one lecture room of the school-and opened their strange new pamphlets, reports bereft of their only useful part, the head-notes! The lecturer opened his.
"Mr. Fox, will you state the facts in the case of Payne v. Cave ?"
Mr. Fox did his best with the facts of the case.
"Mr. Rawle, will you give the plaintiff's argument?"
Mr. Rawle gave what he could of the plaintiff's argument.
"Mr. Adams, do you agree with that?"
And the case-system of teaching law had begun.
Consider the man's courage. . . . Langdell was experimenting in darkness absolute save for his own mental illumination. He had no prestige, na assistants, no precedents, the slenderest of apparatus, and for the most part an uncompromising corpus vile. He was the David facing a complacent Goliath of unshaken legal tradition, reinforced by social and literary prejudice. His attempts were met with the open hostility, if not of the other instructors, certainly of the bulk of the students. His first lectures were fol- lowed by impromptu indignation meetings. "What do we care whether Myers agrees with the case, or what Fessenden thinks of the dissenting opinion? What we want to know is: 'What's the law?'"
A controversy at once sprang up as to the efficacy of this method of instruction. To most of the students, as well as to Langdell's colleagues, it was abomination. The students cut his lectures ; only a few remained. But these few were the seed of the new school. They included several men who afterwards attained national reputation : James Barr Ames, his greatest pupil and successor ; Franklin G. Fessenden, member of the Su- perior Court of Massachusetts ; Austen G. Fox, a leader of the New York bar; Edward Q. Keasbey, of New Jersey; James J. Myers, speaker of the Massachusetts House of Representatives, and one of the leaders of the Boston bar, and Francis Rawle, of Philadelphia, later a president of the American Bar Asssociation. Working out his cases with these en- thusiastic young men, patiently and thoroughly as he always worked, Langdell did nothing to force upon others acceptance of his system. Ames brought youth, fire, virility into the contest; but for many years the two were alone in their use of the new method. It was ten years before others acceded to it. Finally, all of Langdell's colleagues adopted
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his invention, and Thayer and Gray became its chief public defenders. Keener carried it to Columbia, Wambaugh to Iowa, Wigmore to North- western; the number of students at Harvard greatly increased; distin- guished English lawyers approved it; the students trained under it gained notable success at the bar. Long before Langdell's retirement as dean the case for his system was won.
Founding of the Boston University Law School-Reference has al- ready been made to the founding of the Boston University Law School, partly as a protest against Langdell's theory of teaching law at Harvard, and to the fact that for many years it was regarded as a more practical school for lawyers. It is doubtless so regarded today by many men. As the writer is an enthusiastic graduate of the Harvard Law School, who studied under Langdell and was trained in his system of study, he natur- ally does not accede to this view. But the world is big enough for all kinds of men and all kinds of schools and methods, and sooner or later they will grade themselves by their results. Time plays no favorites. In the meantime a generous spirit of mutual appreciation is needed among educational institutions and those trained in them.
The Boston University Law School was established by vote of the trustees of the university in February, 1872. A committee was appointed of which Melville M. Bigelow was a member, to examine and report upon the advisability of the university's having a law school. The report under the hand of Dr. Bigelow advised the project and, the trustees vot- ing to concur in the recommendation, the school was opened in October, 1872, in the Wesleyan Building, 36 Bromfield Street. Lectures were given in Wesleyan Hall of that building and a single room on the first floor constituted the Dean's office and the only official quarters of any kind. Edmund H. Bennett, to whom the school owes much, was invited to be its dean. He was unable to accept, although he did come as a professor.
Hon. George S. Hillard was then tendered the deanship and he accepted, although under the handicap of ill health, which compelled him to retire two years later.
The lecturers whom he called around him embraced Francis Wharton, Judge Benjamin R. Curtis, Henry W. Paine, Edmund H. Bennett, Nich- olas St. John Green, Judge Benjamin F. Thomas, Hon. Charles Theodore Russell, Judge Otis P. Lord, Prof. Melville M. Bigelow, Hon. Edward L. Pierce, and Hon. William B. Lawrence. Some of these men, notably Green, Lord and Bennett, had been similarly connected with the Harvard Law School of the day and were graduates of the older institution, but had become dissatisfied with its new method of instruction. Edward H. Bennett succeeded Hillard as dean and for twenty-five years, until his
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death in 1898, was the great personality in the building of the school. Next to him Dr. Bigelow, a legal scholar of international reputation, was the outstanding figure.
The school, which opened with about sixty students, remained in its original quarters on Bromfield Street only during the first year. In 1873, the property, No. 18 and 20 Beacon Street, was acquired by the trustees for general university purposes and two large rooms there were assigned to the law school. The new premises were soon outgrown, however, and the school returned to the Wesleyan Building, its first home, where it occupied increasingly larger quarters until 1884, when it was removed to Ashburton Place. It has been on one side or other of that street since 1884, now occupying its own building at No. II.
The first catalogue, for the year 1873-74, shows a senior class of twen- ty-two, a "middle class" of like number, and a junior class of thirty-seven, a total of eighty-one, among whom the college graduates numbered thirty-seven. These last came from twelve different institutions, and among the eighty-one students were five from Ohio, two from New York, two from Rhode Island, two from New Hampshire, and representatives from Vermont, Maine, Connecticut, and some from even as far away as Japan and Liberia. This senior class of twenty-two was the first gradu- ates (class of 1873) and included one future Federal Circuit judge, the late Peter S. Grosscup. The student list contained the name of one woman, a junior.
Boston University's background for the study of the law is found in the statement in this earliest catalogue, that of 1873, that "All persons purposing to enter upon the study of law, with a view to making it a profession, are earnestly recommended to first complete a course of lib- eral studies and take their first degree in arts or philosophy." Its im- mediate and lasting contribution to legal education is in the following, from the same announcement: "In all American law schools the regular course of instruction is two years or less. Believing it to be possible and desirable to gradually extend the curriculum, the authorities of this school adopted statutes making its full course, like those in the schools of Theology and Medicine, to cover three years. For the present, how- ever, the degree of Bachelor of Laws is made attainable, here as else- where, at the end of the second year, and attendance the third year is entirely optional. All advantages of the third year are either gratuitous, or regulated as to expense by the desires of those who choose to remain in residence." This gratuitousness resulted in a senior class from the beginning.
The growth of the school has continued steadily and it numbers among its graduates the present chief justice and three associate justices
1
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of the Supreme Judicial Court, as well as many judges of other courts and well known members of the bar.
Other Law Schools-Besides the Harvard and Boston University schools, there are two evening schools, the Law School of Northeastern University (Y. M. C. A.) and the Suffolk Law School, and the Portia Law School, which is a school for women.
Benjamin R. Curtis-In the middle of the nineteenth century, Ben- jamin R. Curtis rose to the front at the Boston bar and was appointed chairman of the Commission to Revise the Practice Act, with Nathaniel P. Lord of Salem and Reuben A. Chapman (later chief justice) as his associates. Again resisting the suggestions for complete codification of all rules of pleading and practice, they reported a plan which retained the outline of common law procedure while simplifying its more tech- nical features, and the Practice Act of 1851, based on their work, has survived in its main features to the present time. In 1851, Curtis, then forty-two years old, was appointed a justice of the Supreme Court of the United States and in 185- wrote the famous dissenting opinion in the Dred Scott case which figured so prominently in the discussions immedi- ately preceding the Civil War. He resigned after six years' service and in the impeachment proceedings against President Johnson in 1868 he was one of the counsel for the President.
Curtis was an exceptional figure in the profession, as indicated by the fact that after his death, in an address to the Iowa Bar Association, Mr. Justice Miller of the Supreme Court of the United States pronounced him in many ways "the first lawyer of America past or present." This is strong language but, as it came from a strong man of a distant State, it is not tinctured with local pride.
Curtis had a remarkable power of statement and of continuous labor. "In the preparation of the answer of President Johnson to the articles of impeachment (a production of exceptional ability), in which he was unassisted by the other counsel, who had not yet arrived in Washington, he worked upon it for more than thirty consecutive hours without rest or sleep, and this was in his sixtieth year." (See "Am. Law Rev." for May, 1880).
"It was a remarkable proof both of his ability as a lawyer and of the public appreciation of his character that Mr. Curtis should have been selected at the early age of forty-two years, without solicitation on his part, or political influence, and from such a bar as then existed in New England, to fill the vacancy in the United States Supreme bench caused by the death of Mr. Justice Woodbury. And at that time, although Mr. Curtis had argued, during the seventeen years in which he had practiced
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