LEGAL EDUCATION BICENTENNIAL - Justices in Academe

WILLIAM F. SWINDLER

Because the year 1979 marks the two hundredth anniversary of the founding of the first academic chair of law in the United States–at the College of William and Mary on December 4, 1779–and because by coincidence or historical accident the great Chief Justice, John Marshall, became one of the first students there, the subject of the education of representative members of the Court becomes particularly timely. Not only where the members of the Court were educated (see table for the period to the end of the Marshall era), but which members were led, either before or after their judicial service, into the groves of academe themselves, is also of some interest.

Marshall's appearance shortly after the chair of law and "police" was established at what had formerly been "Their Majesties' Royall Colledge" in Williamsburg was partly accidental. As a soldier on furlough from Daniel Morgan's redoubtable Rangers, Marshall happened to be stationed in Yorktown, where the Revolutionary War would end just two years later. He had already been pointed toward the law as a career by his father, Thomas Marshall, who was one of the Virginia subscribers to an early Philadelphia printing of William Blackstone's Commentaries on the Laws of England. "During a lull in the hostilities," as the future jurist wrote in one of the few autobiographical comments on his career, he decided "to avail myself of some of the lectures" at the College, twelve miles away, including those of George Wythe, one of the most widely known lawyers of the day who had just been installed, a few months before, in the professorship created at the urging of Governor Thomas Jefferson, himself a onetime student under Wythe.

It should be noted, however, that there was another compelling reason for John Marshall to linger in the vicinity of Yorktown. Her name was Mary Willis Ambler, youngest daughter of Jacquelin Ambler, treasurer of the new commonwealth government. Mary would, a few years later, become the wife whom Marshall always referred to as "my dearest Polly." Indeed, there is prima facie evidence that the young law student was thinking more about her than about what Mr. Wythe was saying, when he began putting down his first notes on the law that winter: The first page of those notes (to be edited and published in the spring of 1980, the bicentennial of the date of their composition) contains a couple of incomplete sentences on the subject of "abatement of actions"–but the rest of the sheet is dominated by other notations, to wit: "Mary Willis Ambler" and "Miss Polly Ambler."

If one seeks striking coincidences, there was the very fact that Marshall, a distant cousin of Jefferson and the future Chief Justice with whom the future President was to do battle, should be one of the first students to enroll under the professorship which Jefferson had helped to create. The governor, who was ex officio a member of the college's Board of Visitors, had been intent on making his alma mater a center for studies relevant to the needs of the new state and nation, and this had been his objective in the chair of law and "police"–the latter a term which in the eighteenth century meant the general scheme of organization for a system of government. Jefferson consciously linked together the training of lawyers for the practice of their profession, and the education of young men (Mary did not join William among the student body until 1919) to take over the various functions of government in the new republic. In the spring of 1780, Jefferson wrote with satisfaction to James Madison that the new law program "by throwing from time to time new hands, well principled and well informed, into the legislature will be of infinite value."

This was typically Jeffersonian in its assumption that an educated citizenry was the key to successful representative government. Democratic purists may argue that in his day it was an essentially elitist premise, resting upon the colonial experience with a government drawn from a planter oligarchy. It certainly contrasts with the Jacksonian philosophy of half a century later–and it is perhaps not entirely accidental that the Jacksonian era saw the acceleration of the movement toward elective, rather than life-tenured, jurists in many state court systems, and the revitalizing, for another generation and more, of the tradition of law office study as the most common preparation for the bar. Jefferson's primary concern, however, was to provide a means for Americans to study the "Americanized" common law; just the previous year, a committee created by the commonwealth legislature, of which he and Wythe had been the principal members, had completed a monumental inventory of the whole body of English common and statute law, recommending specific English laws and decisions to be retained, modified or discarded.

Jefferson himself was a law office product, having studied from 1762 to 1766 under Wythe. But Jefferson, whether on his own initiative or with his mentor's general guidance, had filled his own law books with copious criticisms of English law as it was practiced in the colony. His key recommendations in the "Report of the Revisers" to the Virginia legislature in 1778 concerned the abolition of the feudal tenures in the law of property as these had come down from Sir Edward Coke's day on the eve of New World colonization by English authorities. Even more famous was his unswerving constitutional doctrine on the separation of church and state, embodied in Virginia in the abolition of the government support -of the Anglican establishment. Possibly it was the subconscious recognition of the need to teach law from the standpoint of these new American doctrines that led Jefferson to conceive of the law professorship in the 1779 reorganization of the curriculum at William and Mary.

A decade later, when President George Washington undertook to select the first members of the new Supreme Court which the Constitution had established, he would choose, whether or not by design, men of notable educational background. John Jay, the first Chief Justice, was a graduate of King's College (now Columbia University), who had done his law studies in the office of a prominent New York attorney, Benjamin Kissam, John Rutledge, that neurotic but brilliant jurist who was a reluctant Associate Justice under Jay and later the second (although rejected) Chief Justice, had done his law study at the Middle Temple in London, as had John Blair, an honor graduate of William and Mary.

Of the first twenty-four men who served on the Court through the period of Marshall's Chief Justiceship, half attended one or another of the few institutions of higher learning in the colonies or the postwar states–Columbia (then King's College), Harvard, Princeton, Liberty Hall (later Washington and Lee), William and Mary, Yale–while one immigrant from Scotland, James Wilson, had studied at St. Andrew's. William Paterson earned both A.B. and MA. degrees from Princeton. For their legal study, aside from the two Middle TempIe men, only Marshall and Robert Trimble had college lectures in law available, at William and Mary and at Transylvania in Kentucky, respectively; but among those who read for the bar under practicing lawyers, several were most fortunate in their choices. Wilson read under the leader of revolutionary and constitutional thought, John Dickinson; and Bushrod Washington later studied under Wilson himself (and eventually succeeded Wilson on the Court). Wilham Johnson studied in the office of Coatesworth Pinckney, Brockholst Livingston under Peter Yates, who was a delegate to the Constitutional Convention of 1787 (although he later withdrew from the sessions in alarm at the direction they were taking). Thomas Todd read under Henry Innes, a leading Virginia lawyer, and Henry Baldwin under Judge Alexander J. Dallas, the first reporter of Supreme Court decisions.

The new Supreme Court, and the new Constitution, prompted some members of the bench to write or lecture about these unfamiliar subjects from one rostrum or another–usually after they had retired from judicial office. In the twentieth century, several academic lawyers, such as Harlan F. Stone, Felix Frankfurter and Wiley B. Rutledge, came from law schools to the Court itself, while Justice Owen J. Roberts upon retirement became dean of the law school at the University of Pennsylvania. From the beginning, this academic interest of certain Justices contributed a significant dimension to legal education which has heretofore been overlooked.

James Wilson, one of the first appointees to the Court (1789-1798), was the earliest to attempt a flyer in academic life. Like Joseph Story a generation later, Wilson accepted a professorship in law–the second in the history of the young Republic–in the fall of 1790 while remaining on the bench. The College of Philadelphia (later the University of Pennsylvania) offered the Justice the position, assuming that his work with the highest tribunal in the nation would not significantly interfere with his teaching–a reasonable assumption in view of the fact that no cases had even been docketed during the first two sessions of the Court. Wilson, in turn, was expansive in his vision of what might be done with the law lectures; grandiose projects, which never seemed to come off, were a lifelong failing of this Scottish immigrant leading eventually to his professional and financial ruin.

For the lectures in American law, Wilson proposed to cover both constitutional theory and practice, comparing English, Pennsylvania and United States history on the subjects. This in itself was essentially an extension of a well-reasoned pamphlet he had published on the eve of the Revolution, comparing English and colonial constitutional rights. Beyond this, however, Wilson planned to make an exhaustive survey of the "American" version of English common law, and to lead his students into the arcane realms of the law of nature and nations. Although the professorial tour only lasted the one academic year, and although later critics found his published lectures "prolix and uneven," the insight of a Founding Father which they provided in the constitutional area was a valuable complement to the more famous (and better promoted) Federalist Papers.

It was Marshall's great colleague, Justice Story, who was in fact the first major academic figure in the history of the Court. A prolific writer both before and after his assumption of the Dane Professorship of Law at Harvard in 1829–many of his judicial opinions were themselves erudite commentaries on the law they were interpreting– Story was to produce no fewer than nine definitive treatises on many different areas of law, while continuing his full duties as Associate Justice. His famous three-volume Commentaries on the Constitution in 1833 provided the first definitive treatise on the work of the Marshall Court, and indeed played a fundamental role in cementing the doctrines of that Court into the fabric of American life. The constitutional work went through several American editions, as well as becoming the authoritative statement of constitutional principles translated mo several foreign languages and avidly followed by courts and legal educators in European and Latin American experiments in republican government in the mid-nineteenth century.

More than seventy editions of Story's legal writings were published–including, aside from the constitutional volumes, treatises on agency, bailments, bills of exchange, conflict of laws, equity jurisprudence and procedure, partnerships, and promissory notes. The very year in which he accepted the Harvard teaching position, Story edited a new American edition of a leading English work on Shipping; and two years earlier he had published a collection of the Laws of the United States. It is safe to say that very few professional law teachers, before or since, have produced such a monumental list of reference works, in such varied fields. Story's treatise on conflict of laws, in fact, virtually created this branch of jurisprudence for Anglo-American law, with the work enjoying primacy for several generations in England.

Story's academic career would have been a tough act to follow, under any circumstances; and the nature of the appointments to the Court, and the problems that beset it before and following the Civil War, were not in any case conducive to the objective analysis and exposition of the law. Before he came onto the bench for a brief tenure, made even briefer by his premature death, Lucius Quintus Cincinnatus Lamar had twice taught at the University of Mississippi–first as a lecturer in mathematics, then in 1866 as a professor of law. Lamar's erudition is manifest enough in his political career, but his accomplishments as a law teacher, as well as his potential as a jurist, have not survived in substantial documented form.

A seminal work which does rank with the great treatises of Story–delivered originally as a series of lectures at Boston's Lowell Institute–was Oliver Wendell Holmes' The Common Law, first published in 1883 and still kept in print for today's readership. This work was described by the English legal scholar Sir Frederick Pollock as the best concise summary of the principles underlying Anglo-American law to have been written and published in any language. Thus, twenty years before he came onto the Court, the "magnificent Yankee" made an intellectual contribution to the study of law which has been on every law school dean's recommended reading list to the present. Without ever formally appearing in a law school classroom, Holmes' writing, in this book and in dozens of professional association speeches–which in his case were almost always exhaustively researched original papers, contrary to the all-too-typical bar association speech–enriched the formal study of law throughout the land. (See list of writings in accompanying article.)

A "sleeper" among Justices' contributions to scholarly professional literature is Justice Samuel Freeman Miller's posthumous volume of Lectures on the Constitution of the United States. Aside from Story's 1833 Commentaries, this is the only instance of a sitting member of the Supreme Court having delivered an exhaustive analysis of the Constitution which he had interpreted as a judge. The volume–edited by J. C. Bancroft Davis, one of the reporters of Supreme Court opinions (see "De Minimis" department in this issue of the YEARBOOK)– consists of ten lectures delivered by the Justice in the 1889-90 academic year to law classes of the old National University in the District of Columbia: an 1887 address on "The Supreme Court and the Constitution of the United States," at the University of Michigan; and another address on the centennial of the drafting of the Constitution, delivered in 1887 in Philadelphia.

Davis, himself no mean constitutional scholar, added some background notes to each of Miller's papers and then supplemented the papers with a note on minor passages in the Constitution, and "collated" texts of the Constitution, Articles of Confederation and the early proposals laid before the Philadelphia convention of 1787. The whole comprises a massive, 765-page book which antedated some of the early twentieth-century documentary collections on the Constitution and and at the same time summarized the views of one of the leading members of the Court of the latter part of the nineteenth century.

William Howard Taft, in the decade between his Presidency and his Chief Justice-ship, occupied a special lecturer's chair at Yale Law School, and from this and various other rostra set forth his views on the nature and limits of governmental powers. He was not enthusiastic about the trend of academic thought in the law schools of the period, and especially decried "latitudinarian" views of the Constitution. His first published lectures, in 1913, were revealingly entitled, Popular Government: Its Essence, Its Principles, Its Perils. In 1916, looking at the Presidency from the standpoint of a former Chief Executive, he published Our Chief Magistrate and his Powers; and in 1921 he set forth his opinions on the legislative process in a series of lectures delivered at New York University and published under the title, Representative Government in the United States. Taft the author was prolific throughout his active career; as Governor-General of the Philippines, he prepared and published an exhaustive study of the problems of American colonial administration; as a keen observer of the new intermediate appellate court system, he prepared a critique of its future needs. In speeches before the American Bar Association he spelt out modernizing steps to be taken in the federal judiciary which became the textbooks for professional educators.

The Yale lectureship for Taft was essentially a waiting period for the appointment to the Court which he confidently expected all the while. Four academics of the next two decades, who at the time apparently expected to spend their lives on one campus or another, were to move onto the bench in due course. Harlan F. Stone was dean of Columbia Law School, 1910-23; Felix Frankfurter was a Harvard law professor, 1914-39, and William 0. Douglas was virtually fought over by Columbia and Yale, both institutions considering him the most brilliant young teacher in the early 1930s. In the Midwest, another law school dean, Wiley B. Rutledge of Washington University (St. Louis) and the University of Iowa was quietly and confidently promoted by public leaders impressed with his perception of the changing needs of law in the second quarter of the twentieth century.

Stone's scholarly writing, like that of Holmes and Frankfurter, laid the groundwork for these changes. Although–or perhaps because–Stone's published scholarship was in professional periodicals rather than in books, it had a delayed impact on the bar and the courts which did not manifest its full significance until years later, when he was on the bench himself. His biographer, Alpheus Thomas Mason, wrote of the law dean's publications:

A passion for order and symmetry in law dominated Stone's scholarly writing. It led him to distrust legal fictions, those "white lies" in the law contrived to explain decisions obviously just and in harmony with contemporary social conditions, but inconsistent with the progressive development of the law. With the patience and persistence of a harrier, he traced to its source in old English reports the fiction of "Equitable Conversion by Contract." (13 Columbia Law Review 369, 1913.) Cutting away the case-hardened superstructure erected on the fiction, he exposed the ordinary principles of equity operating normally in a false disguise. Again in 1920, he examined minutely the credit laws of New York in "The Equitable Mortgage in New York" (20 Columbia Law Review 519, 1920), showing how some of the notions of the agricultural society of medieval England still influenced twentieth-century law in the Empire State. To rid Wall Street and Main Street of "curious inconsistencies and complications" caused by the hangover of feudal rules in a society typified by skyscrapers, he urged comprehensive reform and unification of the credit laws.

Frankfurther was the author of two seminal works in his early career–with an associate, Nathan Greene, in 1930 he published the definitive work on The Labor Injunction; while he had collaborated with another colleague, the future New Deal legal light, James M. Landis, in a classic study, The Business of the Supreme Court, in 1926. A more comprehensive list of his work appears in the companion article.

Douglas' remarkable list of publications –also illustrated in the companion article –ranged from the specialized studies in law to his many books on nature and society around the world. His Cases and Materials on the Law of Financing of Business Units, published in 1930, prepared the way for his appointment, a few years later, to the Federal Securities Administration, while his constitutional lectures in India, twenty years later, remain one of the perceptive comparative constitutional commentaries of this generation. Midway between came such best sellers as Of Men and Mountains (1950) and Strange Lands and Friendly People (1951).

The activity of Court members in academia continued into most recent times with the appointment of Tom Clark (who had previously lectured at the University of Florida) as the first occupant of the "judges' chair" at the College of William and Mary in 1976. To come back to this institution, where American legal education began two centuries before, has rounded out a cycle of history.