Blackstone, Litchfield, and Yale: The Founding of the Yale Law School
Blackstone, Litchfield, and Yale: The Founding of the Yale Law School
Abstract and Keywords
This chapter traces the origins of Yale Law School, which goes back to the earliest days of the nineteenth century, when there was as yet no university legal education. The discussions include the reasons behind Yale's long hesitance about sustaining a law school; how young lawyers were trained in a world without law schools; eighteenth-century English jurist William Blackstone's objection to the underlying premise of apprenticeship training; and the shift from the apprenticeship system to university legal education in the United States.
The origins of the Yale Law School trace to the earliest days of the nineteenth century, when there was as yet no university legal education. Law was learned mostly by clerking as an apprentice in a lawyer's office. The first law schools, including the New Haven school that became Yale, developed from the apprenticeship system. The Yale Law School originated as a proprietary school in the law office of a practicing lawyer. This New Haven school was inspired by a forerunner, located in upstate Litchfield, Connecticut. The Litchfield Law School was an astonishingly successful venture, which shaped the development of early university legal education in the United States in ways that I shall discuss.
The New Haven Law School became associated with Yale in the 1820s, although its graduates did not receive Yale degrees until 1843. Yale was so hesitant about its attachment that in 1845 and again in 1869 Yale seriously considered dissolving the School.1 It may strike us as unthinkable that so prominent a university could wash its hands of its Law School, but a variety of university-linked law schools were in fact shut down in the nineteenth century. For example, Princeton's law school, begun in 1846, was shuttered in 1852. Lafayette College had a law school from 1841 to 1852 and again from 1875 to 1884. The University of Indiana Law School, begun in 1842, lapsed in 1877; it was refounded in 1889. A variety of others populate the graveyard of nineteenth-century law schools.2
(p.18) Yale's commitment to its law school was not firm until the 1870s, the period that I will emphasize in my second lecture in this series. As late as the 1870s the Yale Law School was located in rented quarters over a storefront3 on a downtown business street.4 In these premises a single “dingy”5 room served as library, classroom, and lounge. The School acquired a home on the Yale campus only in the 1890s, when Hendrie Hall (facing the New Haven Green) was built for it. Into the dawning years of the twentieth century, the so-called professors at the Yale Law School were in fact practicing lawyers from the New Haven bar, who taught law more or less as a sideline. Not until the early twentieth century did the professors become salaried instead of drawing shares of the school's net income.6
I. The Novelty of Academic Legal Education
What explains Yale's long hesitance about sustaining a law school? And how could a place as important as Princeton let its law school simply die out? These events underscore that the very idea of a university law school was novel in the nineteenth century. The leaders of Yale and Princeton knew what a college was supposed to be, but they were not at all certain that a law school was within their mission. The reason they were so ambivalent about law is that the American colleges patterned themselves on the English universities, and the English universities did not have law schools.
Neither Oxford nor Cambridge taught English law until well into the nineteenth century,7 and when they finally did institute university legal education in the common law, they would act under the influence of the American example. Like the Continental universities of the day, Oxford8 and Cambridge9 taught some Roman law, which was useful for the courts of the English church and in a few so-called civilian jurisdictions such as the court of admiralty. In 1846, a committee of the House of Commons reported candidly that “[n]o legal education worthy of the name … is at this moment to be had in … England.”10 As late as the 1880s, Dicey was still echoing this tradition. In his inaugural lecture as Vinerian Professor at Oxford, he observed, “English law must be learned and cannot be taught. … [T]he only places where it can be learned are the law courts or [in barristers'] chambers.”11
University legal education in the common law was an American innovation, which is noteworthy, because the American legal system was in most respects quite derivative. Both the doctrinal side of American law (that is, the substantive law) and the institutional life (bench and bar, the jury system, civil and criminal procedure, law and equity) were English transplants, albeit with local variances. Moreover, the Americans produced virtually no indigenous legal (p.19) literature for the first quarter century after independence,12 which left them dependent on English reports and treatises. In this setting, it is striking to see the Americans veer off from English models and pioneer the university law school. The founding of the Yale Law School was one of the first chapters in that experiment.
How were young lawyers trained in a world without law schools? In England, from the late Middle Ages into the early seventeenth century, the professional bodies called the inns of court conducted training programs for law students.13 The quality of legal education at the inns appears to have declined in the early decades of the seventeenth century, perhaps earlier. The training role of the inns lapsed entirely during the turmoil of the English civil war and Interregnum in the 1640s and 1650s.14 The inns “ceased to be educational institutions.”15 Thereafter, beginners were left to learn the law by a combination of private study and formal apprenticeship.16
The would-be lawyer started by reading elementary primers, then he plunged into the primitive treatise literature,17 practice manuals, yearbooks, and law reports.18 The student would typically buy an alphabetized blank volume called a commonplace book,19 into which he would enter topically organized notes on his reading. The idea was not only to learn the law but also to create a reference work, a personalized encyclopedia, to which the compiler might refer across his career. Commonplace books of this sort survive in vast numbers in the legal manuscript collections in England and in the United States.
After reading and commonplacing for a time, the student typically advanced to a period of apprenticeship. In eighteenth-century England an intending barrister would commonly clerk for a solicitor, despite the social distance between the two branches of the profession.20 In the American colonies, where the lawyer population was too thin to sustain the divided profession, intending lawyers routinely trained as apprentices with practicing attorneys.21 Apprenticeship involved learning law the way we expect someone today to learn plumbing: in the workplace, as a practical trade. You do not go to university to study the theory of plumbing. You learn plumbing by working with, observing, and imitating an experienced master.
Apprenticeship entailed a bargain22 between the lawyer-master and the student-apprentice. The lawyer pocketed a substantial fee from the apprentice's family, typically £100 a year. Moreover, the apprentice was required to assist the lawyer, especially by copying documents, which was an important part of the work of a law office in a pre-Xerox age. The apprentice, for his (p.20) part, obtained access to the lawyer's library of practice books and law reports, which was a considerable privilege at a time when law books were scarce and costly.23 The lawyer was meant to guide the student in a course of reading, and to show the student the ropes while the student assisted with the business of the office.
In the American version, apprenticeship was often connected to bar admissions. After the apprentice had served his time, the lawyer would certify him for admission.24 This linkage of education and licensure is a deep theme in the history of legal education. It was characteristic of the inns of court in their heyday (call to the bar of the inn followed years of participation in the learning exercises of the inn), and it has played a significant role in the life of American law schools to this day. I tell no secrets when I mention that modern American law schools are obliged to be part of an accreditation cartel, operated by the American Bar Association25 and the Association of American Law Schools, in conspiracy with the state bars. The central mission of this cartel, conducted under the cover of enforcing supposed educational standards, is to increase lawyers' profits by driving up the price of entry into the profession, which restricts the supply of lawyers.
Apprenticeship training in the eighteenth century had serious drawbacks. Few apprentices had good words for it. William Livingston, who clerked for a New York lawyer in the 1740s, complained of receiving no instruction in his studies and of being overworked in “servile Drudgery.”26 Thomas Jefferson counseled a young relative against apprenticeship on the ground that “I have ever seen that the services expected in return have been more than the instructions have been worth.”27 Similar grievances were voiced in England. Apprenticeship was, therefore, a risky business, in which the student was frequently exploited. Nevertheless, students continued to apprentice themselves, because they had no practical alternative.
Among the many critics of apprenticeship was the eighteenth-century English jurist William Blackstone. Blackstone focused not on the danger of exploitation, but rather on the underlying premise of apprenticeship training. He contended that apprenticeship was an ill-conceived way to learn law even when the lawyer-master behaved responsibly. Apprenticeship training begins “at the wrong end” by plunging the student into the fine points of legal practice while he is still “uninstructed in the … principles upon which the rule of practice is founded.” Because a student trained in this way learns to imitate rather than to reason, Blackstone feared that “the least variation from established precedents will totally distract and bewilder him ….”28
(p.21) Blackstone's emphasis on redirecting the initial phase of legal study away from practice and toward the study of principles was the theme that pointed toward university legal education. This concern with principles reflected (and reinforced) changes then underway in how English law was organized and conceptualized. The English law of Blackstone's day was undertheorized. The writ system that had been inherited from the Middle Ages treated substantive law as an incident to pleading, inspiring Henry Maine's celebrated aphorism that in primitive legal systems substantive law is “secreted in the interstices of procedure.”29 By Blackstone's day, the writ system had become archaic. A single writ, trespass, had been manipulated to cover most of the law.30 What Blackstone did in his four-volume Commentaries on the Law of England, published from 1765 to 1769, was largely to abandon the writs as organizing categories, in favor of concepts of substantive law.31 (This development also permitted civil procedure to be disentangled from particular writs and generalized into a trans-substantive field.)
Blackstone's book resulted from a failed effort to initiate university legal education. Beginning in 1753, Blackstone began offering a course of lectures on English law at Oxford.32 A bequest from Charles Viner gave Oxford a chair in English law, to which Blackstone was elected in 1758.33 Blackstone aimed his lectures mainly at the young gentlemen who would go off to manage their estates and serve as local officeholders and members of Parliament, but he also meant the lectures (and the book version that he published as the Commentaries in the 1760s) to serve intending lawyers. He hoped to make “academical education a previous step to the profession of the common law,” as well as to make “the rudiments of the law a part of academical education.”34 Despite Blackstone's later renown, this experiment with university legal education did not succeed. Blackstone attracted some following at Oxford,35 but he wanted a career in London. In 1759, a year after being elected to the Vinerian chair, he reestablished chambers at the bar. He entered Parliament in 1761, resigned the chair in 1766, and in 1770 became a royal judge.36 In the hands of his successors, the Vinerian chair became a sinecure until the university reforms of the later nineteenth century.37
I must say something about the structure and contents of the Commentaries, because Blackstone's book became the template for Litchfield,38 and thereafter, for the curricula of early Harvard39 and Yale.40 Blackstone had studied Roman law before turning to the common law, and his familiarity with European legal literature suffuses his book.41 Borrowing from the European tradition of institutional writing that traces back to Gaius and Justinian,42 Blackstone divided his work into the law of persons, things, and actions. Volume One, on persons, contains an account of English constitutional and administrative structure. Blackstone bundled these public law chapters (p.22) with his account of what we might call the law of status—that is, master and servant, domestic relations, and guardianship. Volume Two, on things, covers property law, including estates in land, inheritance and donative transfers, personal property, and bankruptcy. For his Volumes Three and Four, Blackstone departed from the Roman convention and spoke of wrongs rather than actions. Volume Three, on private wrongs, discusses tort law, as the title suggests, but eighteenth-century tort law was primitive,43 and most of what the volume is really about is civil procedure, including the jury system and the law/equity division. Volume Four, on public wrongs, is devoted to criminal law and procedure.
Blackstone's presentation of legal rules as a body of reasoned principles drew on the European natural law tradition. Blackstone's reasons do not always impress us as the right ones. He was famously apologetic for the law of his day. For example, he defended the subordination of the wife's property interests to the husband by reasoning that since the “husband and wife are one person in law,” the wife does not need any rights.44 Most of us can think of some objections to Blackstone's reasoning on this issue, but that is a different point. His legacy was to establish the primacy of theory in the common law. Rules have reasons. Because the reasons limit the rule, a good lawyer learns to think about the reasons as well as to master the rules.
Blackstone's Commentaries was an instant publishing success, both in England and in the colonies.45 The first American edition (the famous Bell edition published in Philadelphia in 1771) had what was for the time and place an immense press run of 1,587 copies, subscribed in advance.46 Thereafter, the Commentaries went through innumerable editions and abridgments. (The Yale Law Library has one of the world's great collections of these various editions.47)
The Commentaries appeared on the eve of the American Revolution. For the Americans, Blackstone was even more important than he was on his home turf. The successful outcome of the Revolution raised the question of why Americans should continue to adhere to rules laid down in ages past by judges serving a distant sovereign, whom the Americans had just defeated in the Revolutionary War. Blackstone's book, by conflating common law and natural law, supplied the answer that the Americans needed. English common law would apply in the new nation not because the king's judges commanded it, but because the common law embodied enduring principles of justice. Blackstone gave the common law a seeming universality that allowed the Americans to retain it despite its English taint.
By making law a field of principle, Blackstone made it resemble the fields that were already at home in the university—philosophy, theology, mathematics, (p.23) the natural sciences. In this way Blackstone facilitated the movement to university legal education in the United States. Oddly, however, the place where Blackstone's vision of legal education was first realized was not in an English university, but in a proprietary law school located toward the edge of the then-known world, in the town of Litchfield in northwestern Connecticut.
In the United States, the shift from the apprenticeship system to university legal education did not happen in one clean step. Rather, there was an intervening phase, of proprietary law schools, including the one in New Haven that would become Yale. Systematic legal education first appeared in close association with apprenticeship. Law offices sprang classrooms. Only after these law-office schools demonstrated the appeal of systematic legal education did the universities step in and capture the field.
The New Haven law school that became Yale was one of several such proprietorships.48 Harvard and Columbia had similar but less prominent connections. The Harvard Law School, although begun in 1817, had dwindled by 1829 to a single student.49 It was effectively refounded in 1829 when Harvard teamed U.S. Supreme Court Justice Joseph Story as a part-timer with John Hooker Ashmun, whose proprietary law school, originally located in Northampton, Massachusetts, was then merged into Harvard.50 The modern Columbia Law School was founded in 1858, when the Columbia trustees succeeded in mounting what was in effect a takeover bid for a proprietary law school operated by Theodore Dwight at upstate Hamilton College.51
The earliest, the largest, and by far the most influential of these proprietary schools was the Litchfield Law School. Across the half century of its operation, from the 1780s to the 1830s, Litchfield trained about a thousand lawyers,52 drawn from every state of the then-Union. This number is all the more astonishing if we bear in mind how small the bar then was. Around the year 1800 in all of Connecticut there were perhaps 120 practicing lawyers,53 and how much actual practice many of them had is a matter of doubt. Litchfield alumni included two vice presidents of the United States (Aaron Burr and the antebellum political leader John C. Calhoun), three U.S. Supreme Court justices, and thirty-four state supreme court justices. More than a hundred Litchfield alumni, roughly one in ten, served in the U.S. Congress, including twenty-eight in the Senate. Fourteen became state governors.54
By establishing the market for systematic classroom instruction as the entryway to the legal profession, Litchfield originated the American law school. The Litchfield model spread to other proprietary schools55 (some, such as (p.24) the Northampton school, founded by Litchfield alumni56), and then to the university-affiliated schools, especially Harvard and Yale, which ultimately drove Litchfield out of business.
A. Reeve and Gould
The founder of the Litchfield Law School was one Tapping Reeve, the son of a Long Island parson. Reeve graduated Princeton in 1763, remaining there for a time as a tutor before apprenticing with the prominent Hartford lawyer, Jesse Root.57 Reeve settled in Litchfield and opened a law office in 1773.58
The town of Litchfield was at that time the fourth largest in Connecticut. It was an agricultural center and county town, as well as a coaching station on major north–south and east–west roads. Litchfield was a cultural center for its day, with an unusually large number of college-educated men.59 Three courts (superior, county, probate) sat there, and the bar, although small, was distinguished for the day.60
Reeve married Sally Burr,61 the sister of Aaron Burr, the future vice president. Like other lawyers of the day, Reeve took in apprentices. His first apprentice was Aaron Burr, who came to study with him in 1774,62 the year after he graduated from Princeton. Perhaps on account of Reeve's connections to the Burr family, which was intertwined with the equally prominent Edwards family,63 he had a stream of notable young men as his early clerks.64
Reeve developed a reputation for devotion to the training of his apprentices, and as his renown spread, he found himself taking apprentices in larger numbers. As the numbers of his students grew, Reeve found that it made sense to organize instruction by means of formal lectures.65 In the early 1780s Reeve wound down his law practice to concentrate on teaching. In this way, Reeve's law office metamorphosed into a law school. When Reeve's school outgrew the physical limits of his office, he arranged in 1784 for the construction of a tiny one-room schoolhouse to serve as the classroom and library.66 This building, not much larger than a modern garden shed, has been restored and is now maintained in the loving care of the Litchfield Historical Society. I sometimes take a group of legal history students to visit the Litchfield Law School. We begin these expeditions from our base in the halls of the Yale Law School, now refurbished to Versailles-like splendor. I never cease to marvel at the contrast with the tiny, unheated wooden shack on South Street in Litchfield, where American legal education effectively began.
In 1798 Reeve took on an associate, James Gould, to help him with the school. Gould was a former student, and in 1820, after more than two decades of collaboration, Gould succeeded Reeve as the sole proprietor. He operated (p.25) the school until it closed in 1833. Both Reeve and Gould became part-time judges67 and were addressed by that title.
B. The Students
When Gould joined Reeve in 1798, the school had twenty students. Enrollment increased to a peak of fifty-five in 1813.68 A few of the students lodged with Reeve and his wife, but most lived with families scattered around Litchfield. The students were, of course, all male.
A striking attribute of the Litchfield student body is that this first American law school was a national school. Biographical records69 have been compiled for 90370 of the students who are believed to have attended the school from the 1770s until it closed in 1833. About a third came from Connecticut, a quarter from New York and Massachusetts, and a fifth from the South.71 Seventy students came from what was then the most distant state, Georgia.72 Bearing in mind the difficulty and expense of travel in those days, it is astonishing that this tiny proprietorship could draw students from such distances and in such numbers.
What attracted these young men to study in Litchfield was not only law but also ladies. If you played your cards right, you could leave Litchfield with a bride as well as a career. From 1792,73 the town was home to a hugely successful school for women, Sarah Pierce's Female Academy.74 Like Tapping Reeve's law school, Pierce's school attracted young women of good family from great distances. Some, indeed, were the siblings of law students, the young women being allowed to go to Litchfield to study under the erstwhile protection of a brother. Litchfield law students married women from the female academy by the dozens.75 It is reported that “[a]t the beginning of every semester, Pierce and Reeve exchanged lists of the ‘eligible’ students under their respective tutelage.”76 One young man wrote home in the year 1830 that he planned to concentrate on his studies in the near term, because Mrs. Reeve had told him “that all the marriageable young ladies have been married off, and that there is at present nothing but young fry in town…. The young ladies, she tells me, all marry law students, but … it will take two or three years for the young crop to become fit for the harvest….”77
Americans who became lawyers tended to obtain a liberal education in one of the colleges before beginning apprenticeship, which was also the pattern in England for intending barristers. Recent scholarship has established that over half the barristers admitted to the inns of court during the years from 1688 to 1754 had studied (something other than English law) at one of the three universities—Cambridge, Oxford, or Trinity College, Dublin.78 Because the Litchfield Law School was an outgrowth of apprenticeship training, it is not (p.26) surprising that patterns inherited from apprenticeship persisted, and that Litchfield law students continued to come from the universities. The Litchfield Law School student body was composed prevailingly (nearly two-thirds) of men who had already attended college.79 Litchfield had a particularly heavy draw from Yale College, which provided a quarter of the students.80 Brown, Columbia, Dartmouth, Harvard, Princeton, Union, and Williams were also strongly represented in the Litchfield student body.81 We see, therefore, that from its earliest apprenticeship phase, American legal education has exhibited a trait that has ever since distinguished it from legal education on the Continent: In the United States, legal education is graduate education. Law students already hold a first university degree in something else.82
Although the Litchfield Law School drew a student body composed prevailingly of college graduates, Litchfield did not award its students a further degree for the course of postgraduate study in law.83 Rather, Litchfield retained the rubric of apprenticeship. John Doe, the Litchfield student, received a letter from Reeve or Gould saying that Mr. Doe has read law in my office and attended my lectures there from such-a-date to such-a-later-date.84 The student would present this letter to his local bar authorities, in order to satisfy at least part of the requirement that students clerk in a law office for a prescribed period before being admitted to the bar.85
Not only was there no Litchfield degree, there were no examinations either.86 You passed your time, and you got your letter. This happy state of affairs carried over to the early university law schools, both Yale and Harvard, which awarded their degrees, like parole, for time served. Joseph Choate, who entered Harvard Law School in 1852, recalled that “there were absolutely no examinations to get in, or to proceed, or to get out.”87 The introduction of annual examinations was one of Langdell's principal innovations at Harvard in the 1870s.88
C. The Curriculum
What did the Litchfield instructors actually teach? This is a matter of some importance, because decades after the Litchfield Law School had been shuttered, American university law schools were teaching a curriculum whose contours had been shaped at Litchfield. Happily, this is also a subject about which much is known, because detailed student notebooks from Litchfield survive literally by the dozen in various manuscript collections. The Yale Law Library and the Litchfield Historical Society have the most extensive holdings. There are also important holdings of Litchfield notes in Hartford, in Washington, and at the Columbia and Harvard law libraries.89
How did Tapping Reeve decide what to teach? The answer is quite clear: He (p.27) followed Blackstone. Reeve's law school of the 1780s, perched on the edge of the North American wilderness, would have been unthinkable had not Blackstone's Commentaries already sketched out the curriculum in the 1760s. Part of what disposed Reeve90 and other early law teachers91 to a national curriculum rather than one focused on the laws of the home state was the cosmopolitanism of Blackstone, although as Zephaniah Swift showed in his System of the Laws of the State of Connecticut,92 the first American law treatise, it was possible to mold an account of one state's practice around the organizational scheme and the topics that Blackstone identified.
Reeve and Gould presented lectures that they updated across the years as the law developed. One or the other teacher lectured for an hour and a half each morning, reading slowly enough for the students to transcribe the lecture word for word. Gould published a proud account of his dictation style of instruction in a law journal in 1822. The students took down in full “[a]ll the principal rules and distinctions, given out in the lectures, together with the references intended to support them….”93
Gould positively discouraged his students from reading reported cases. He thought that case study was too challenging for novices.94 The contrast with later developments in American legal education is striking. Harvard under Langdell in the 1870s was a direct descendant of Litchfield's emphasis on the importance of teaching legal doctrine in a principled way,95 but Langdell would insist on having the students derive the principles from the study of appellate cases. He disparaged secondary material such as the textbooks employed in the text-and-recitation system of legal education, which had become prevalent by Langdell's day.96 Litchfield's system of dictated lectures was a primitive forerunner of the textbook.
To the modern observer, the most striking feature of a Litchfield legal education was this emphasis on having students transcribe, embellish, and preserve a set of lecture notes. The premise was that the teacher had acquired a storehouse of valuable knowledge97 about the rules and their rationale, and the classroom was the place for him to transfer this information orally to the student. Each morning the student would scribble down raw notes in class. That afternoon, after comparing the treatment of the same topic in practice books and law reports found in the school's library, the student would prepare a fine copy of the lecture notes, which he entered into a bound blank volume.98 Producing an encyclopedic notebook of this sort served something of the function of the old-time commonplace book. A course of lectures at Litchfield lasted about fourteen months,99 and by the 1820s the student would routinely fill up five volumes of these fine-hand notes.100 As late as 1828, the Litchfield Law School was boasting that such student notes “constitute books of reference, (p.28) the great advantages of which must be apparent to every one [who has] the slightest acquaintance with the comprehensive and abstruse science of the law.”101 The Litchfield instructors also ran a moot court program “[t]o assist the students in investigating, for themselves, and in forensic exercises….”102
The fourteen-month elapsed time for the Litchfield course seems odd to the modern observer, because it would not have fit the pattern of annualized course offerings that we now expect. Litchfield did not have an academic year as such. Rather, students could start when they wanted and finish fourteen months later, much like going to the cinema in the good old days of the mid-twentieth century, when you could enter at your pleasure and leave when that part came around again. The early university law schools also operated in this way.103 The so-called phased curriculum, in which certain subjects are identified as fundamental, and have to be mastered before the student advances, was part of the package of reforms that Langdell devised at Harvard in the 1870s. The package also included annual or course-level examinations and a partially elective upper-level curriculum.104 These reforms ultimately became the industry standard, but long after Litchfield had been shuttered.
Litchfield students learned the law in an almost literal sense. They came to Litchfield to capture the law, to write it down and take it back with them, often to places where law books were rare. This conception of the purpose of legal education would not, of course, endure. It presupposed a relatively static body of law and extreme scarcity of legal literature, conditions that would change markedly across the nineteenth century.
Because the Litchfield instructors updated their lectures to take account of the latest developments in the law, Litchfield student notes would lend themselves to a project that has been suggested105 but never carried out. The early notes, from the 1780s and 1790s, stem from a time when there was almost no American legal literature. By the last years of Litchfield (in the 1830s), however, American law reports and statutory compilations had so burgeoned106 that contemporaries were becoming uneasy about coping with the quantity. By comparing Litchfield notebooks across the decades, it should be possible to form a fairly detailed view of the Americanization of the common law. The Litchfield notebooks remain in manuscript, however. Until modern scholarly editions of selected sets become available, the genre will not be widely usable for historical study.107
What subjects did Litchfield teach? Reeve and Gould followed Blackstone's Commentaries but with revealing changes. They deleted the coverage of the English constitution from Blackstone's Volume One—understandably, since the Americans had just got finished overthrowing this regime. The Litchfield instructors (p.29) basically ignored public law.108 Another possibility, realized by Chancellor Kent in his Blackstone-inspired Commentaries on American Law,109 would have been to substitute American constitutional law for English.110
The Litchfield course tracked and amplified Blackstone's Volumes Two and Three, dealing with property, succession, tort, and civil procedure. Blackstone's handling of contract was primitive, even though he worked in the age of Lord Mansfield, when English contract and commercial law flowered.111 “Blackstone grouped contracts not in terms of what elements made an enforceable contract, but in terms of the effects of various types of contracts on property rights.”112 The Litchfield lecturers added considerable coverage of the emerging law—their topics included bills of exchange, promissory notes, insurance contracts, and charter parties.113
The most striking departure from Blackstone's plan is that the Litchfield course dropped crime, to which Blackstone had devoted essentially the entire fourth volume of his Commentaries. Litchfield's coverage was so brief that in 1822 Gould was teaching it in what he called “supernumerary” evening lectures.114 This dismissive attitude toward criminal law as well as the disinterest in constitutional law underscore how totally the Litchfield curriculum was devoted to private law. We see in this respect the influence of the law-office culture from which the Litchfield Law School emerged. Crime was relatively rare in provincial Litchfield, and it was not a market the upper crust of the legal profession expected to serve. Likewise, constitutional law was as yet scarcely a field of law office practice. The curricular traditions of American legal education would long bear the influence of the law offices from which the first law schools grew.
D. The Decline
The Litchfield Law School withered in the later 1820s and died in 1833.115 The main reason Litchfield closed is that it could not effectively compete with the newly founded university law schools, especially its near neighbor, Yale. Enrollments from Massachusetts declined after the founding of Harvard in 1817,116 and total enrollment declined steeply in the later 1820s, as the New Haven Law School became Yale.117 Yale College graduates, who had supplied a quarter of the Litchfield student body, were ever less likely to trek up to remote Litchfield for law school.118 When ill health forced Gould to retire, no successor wanted the business.
We know in the light of hindsight that Litchfield and the other proprietary law schools of the day constituted a transitional phenomenon, way stations on the path to university legal education.119 Why was Litchfield unable in the end (p.30) to hold its own against the university-linked schools? Not only did Litchfield lack the cachet of the universities, Litchfield had four fatal weaknesses when pitted against the university law schools.
The proprietorship format was a loser. The Litchfield Law School resembled any other proprietorship, for example, Sammy's Delicatessen. We do not expect Sammy's Delicatessen to endure across the ages. Sometimes when Sammy retires or dies, he arranges for a child or a buyer or a partner or an employee to take over the deli, but often enough there is nobody suitable. In that case, Sammy just closes shop, or his executor does it for him. The salami slicer gets sold off, and the deli is wound up.
My point is that in a proprietorship, succession frequently poses difficult or insurmountable problems (as was the case at Litchfield, where there had been friction between Reeve and Gould in the 1820s when Reeve became unable to continue,120 and when in the 1830s Gould was unable to attract a successor). Universities, by contrast, are long-lived; they are designed as institutions of perpetual succession. They have an administrative capacity to manage succession problems, and they have an institutional interest in doing so. We see this contrast in the differing fates of Litchfield and Yale. Whereas Gould's law school died a proprietor's death in 1833, Yale's leaders would intervene in 1845 and again in 1869 to manage succession crises that occurred at the proprietary law school that was attached to Yale.121
Litchfield's increasingly archaic pedagogy was not sustainable.122 The system of lecturing, which had been such an advance over apprenticeship in the 1780s, became retrograde by the 1830s. Litchfield's most effective competitors, the new university law schools at Yale123 and Harvard,124 were supplementing, and increasingly replacing, set-piece lectures with a different and superior technique, the so-called text-and-recitation system, about which I shall say more in my next lecture in this series.125 (Yale clung to text-and-recitation instruction126 —the “Yale Method”127 —for a generation after Harvard began abandoning it for the case method and related reforms in the 1870s.128)
The oral tradition put Litchfield at a disadvantage not only in competing with other schools and methods of pedagogy, but also against the advance of the printed law book. Having students construct a handwritten legal encyclopedia became a fool's errand in the changed circumstances of the revolution in legal publishing that got underway in the last decades of Litchfield. In the language of today's financial pages, the Litchfield proprietors failed to adapt to technological changes that made their business model obsolete. They were hostile to publishing at a time when the cost of publishing was plummeting.129 They tried to sustain an archaic tradition of imparting knowledge by lecture (p.31) just when the age of the textbook and the treatise was bursting upon them. Litchfield's demise may stand in this regard as a cautionary tale for law schools and universities in our own times, as we grapple with the implications of the new electronic technologies for instruction, research, and the dissemination of knowledge.
A further disadvantage under which Litchfield and the other proprietary law schools suffered vis-à-vis their university-based competitors was their inability to attract philanthropy. Even if you have enjoyed your visits to Sammy's Delicatessen, you tend not to include Sammy in your annual giving nor to remember him in your will. The personal proprietorship as a mode of organization tends to restrict the amount of capital that can be brought into an enterprise. The Litchfield proprietors were limited to the investment that they could obtain in their personal capacities. Across time as the need for facilities, library, and faculty grew, personal capital would not be enough to sustain a law school. The law school as an extension of the smalltown law office was an inherently transitional and unsustainable form.
Access to philanthropy gave a decisive advantage to Harvard and Yale, Litchfield's two most formidable competitors. Harvard used the Royall devise to launch its law school in 1817;130 donations from Nathan Dane permitted the refounding of the school under Joseph Story in 1829.131 I explain in my next lecture in this series132 how Yale's ability to be an object of philanthropy was crucial to the survival of Yale Law School in its first succession crisis in 1845, and to its flowering in later decades.
The deepest flaw that would inevitably have doomed the Litchfield Law School in the long term was, I believe, its isolation, by which I mean not only its location in a remote town, but also its isolation from the other intellectual currents of a university. Litchfield exemplified the view that law was an autonomous discipline, so autonomous that a single lecturer could master it and then impart it by dictation in a fourteen-month course. We learned across the twentieth century what the Litchfield proprietors had no particular reason to know in their day, that law schools thrive in association with the study of cognate fields of knowledge. Nowhere more than at Yale would this insight be taken to heart. Beginning in the 1870s in circumstances discussed in my next lecture,133 the Yale Law School began that remarkable lurch toward association with the academic disciplines that came to distinguish it.
E. Litchfield's Legacy
I am now going to depart the Litchfield hills for the trip down to New Haven. As I do so, let me remind you why this failed enterprise, the Litchfield (p.32) Law School, was so important. It impressed a triple legacy on the history of American legal education. First, Litchfield established that pedagogy dominates apprenticeship for introducing students to the law. For the future, the question was not whether law would be studied in the classroom, but where and how. It was the where and the how that Litchfield got wrong. The universities would suppress proprietorship legal education, and they would teach in ways more congenial to the exploration of knowledge. Second, Litchfield established the conventions of the national law school. Legal education would not center on the law of an individual state, and accordingly, the students could be drawn from throughout the country. Third, the law office origins of Litchfield and the other proprietary law schools that Litchfield inspired imparted a pronounced private-law bias to the curricular traditions of American legal education. As I shall discuss in my next lecture, disquiet about the narrowness of this private-law orientation would begin to surface at Yale in the 1870s, just when the private-law tradition had been powerfully reinforced (in rather different ways) at Dwight's Columbia and at Langdell's Harvard.
I said at the outset of this lecture that the Yale Law School had a prehistory of sorts, because the School was the outgrowth of a proprietary law school that began operating from a New Haven law office sometime in the early years of the nineteenth century, before the School affiliated with Yale.
A. The Founders: Staples, Hitchcock, and Daggett
The original proprietor, Seth Staples, was born in 1776 and graduated Yale College in 1797. He studied law in the New Haven office of David Daggett (about whom more below) and was admitted to the bar in 1799.134 Staples must have been a person of some wealth, because the next year, in 1800, he was able to import from England what was for its day an exceptionally good law library,135 to which he added all his life.136 This library made his office an attractive place for would-be apprentices to read law. Staples probably began, like Reeve at Litchfield, by taking apprentices in the older way. We do not know when his operation turned into a school. Staples kept a list of his students only from the year 1819;137 for earlier years we have only incidental and incomplete information about who may have studied with him. Looking back a half-century later, Simeon E. Baldwin reported that it was remembered of Staples that he “undertook the charge of a class of half a dozen law students, who recited to him in the intervals of business, generally before breakfast, every morning.”138
(p.33) The Litchfield Law School had been operating for perhaps twenty years when Staples opened his New Haven law office, and Staples was acutely aware of what went on at Litchfield. Staples did not attend the Litchfield Law School,139 but in 1798, while still a student in Daggett's office, Staples copied by hand a set of Litchfield notes. (This notebook, which survives in the Yale Law Library,140 gave the mistaken impression141 that Staples studied at Litchfield.)
Unlike Tapping Reeve, Staples remained active at the bar. In 1820 Staples took on a former student, Samuel Hitchcock, as a partner in his combined law office and law school.142 Hitchcock would come to personify the Yale Law School from the mid-1820s until his death in 1845. He was born in 1786 and graduated Yale College in 1809. He remained at Yale as a tutor, read law in Staples' office, and was admitted to the bar in 1815.143 In 1824, four years after Hitchcock joined him, Staples withdrew from the office and from the school. He relocated his practice to New York City, where he built his career in a field that has become hot again in the computer age—intellectual property law. Staples became the patent lawyer for Charles Goodyear. In a string of lawsuits Staples vindicated Goodyear's patent on the vulcanizing process for rubber manufacture.144 In 1839 Staples took on a case of a different sort: He served as one of the lawyers who represented145 the captured Africans whom the U.S. Supreme Court freed in the now celebrated Amistad case.146
When Staples withdrew from the school in 1824, Hitchcock became the sole proprietor. Hitchcock bought some of Staples' library and added to it across the years. Hitchcock continued to practice law, and he also served as a judge in the county and city courts. He was mayor of New Haven from 1839 to 1841.147
The oldest of the three men who are reckoned as the founders of the Yale Law School was David Daggett, the last to become associated with the school. He was the lawyer with whom Staples had apprenticed in the later 1790s. Daggett was born in 1764, graduated Yale College in 1781, studied with a New Haven lawyer, and was admitted to the bar in 1786.148 He became a prominent Federalist politician, held a variety of state offices, and from 1813 to 1819 served as U.S. Senator from Connecticut. In 1824 when Staples left for New York, Daggett joined Hitchcock in teaching law at the school. Daggett remained active at the bar and in politics.149 From 1826 to 1832 he was a superior court judge, from 1828 to 1830 he was the mayor of New Haven, and in 1833–34 he was chief justice of the Connecticut Supreme Court.
B. Affiliation with Yale
In 1826, the year Daggett became a judge, and two years after he began teaching at the law school, Daggett was named to yet another job, as professor (p.34) of law in Yale College. There was one precedent for this appointment. Back in 1801, Yale College had appointed a local politician and alumnus, Elizur Goodrich, as the first professor of law in the College.150 Goodrich seems to have had some time on his hands, having just been sacked by the incoming president, Thomas Jefferson, from the post of customs collector for the port of New Haven.151 Yale engaged Goodrich to present a course of lectures on jurisprudence and the American constitution. Goodrich soon acquired local and state political office. It appears that Goodrich ceased giving his Yale course in 1806; he resigned the appointment in 1810.152 The professorship lapsed until 1826, when Yale renewed it for Daggett. Thereafter for many years Daggett gave some lectures in the College on what we would today call public law and government. This professorship in the College became the Chancellor Kent chair in 1832, when funds were raised to name it in honor of the New York jurist, James Kent (Daggett's classmate in the College class of 1781), as part of Yale's first fundraising campaign, the Centum Millia Fund.153 (The chair was last held in the College by William Howard Taft,154 in the interval (1913–21) between his presidency and his chief justiceship of the Supreme Court. The chair migrated from the College to the Law School in the second half of the twentieth century, when Alexander Bickel was named to it.)
There are two longstanding puzzles about Yale's affiliation with the Hitchcock/Daggett proprietary law school: When did it happen and why?
The Yale Corporation did not take a formal vote to affiliate with the Law School. On the evidence available, I incline to treat Yale's appointment in 1826 of the New Haven law school professor Daggett to be the law professor in the College as marking the date of the affiliation. From that year the College catalogue began to identify “The Law School” and to describe its instructors and course of study155 in the same pages as Yale's other two graduate schools, the “Theological Department” (today's Divinity School, founded in 1822156), and the “Medical Institution”157 (today's Medical School, established in 1813158). A further milestone in the affiliation occurred in 1830, when Yale conferred a courtesy title of professor on Hitchcock.159 Not until 1843 did Yale begin awarding its degree to the Law School's graduates—prompted by competitive pressure from Harvard.160
The official version161 of the story of the Law School's affiliation with Yale fixes the event in 1824, when the Yale College catalogue begins to have a separate listing for “Law Students,”162 but this evidence is weak. The student listings in the otherwise skimpy College catalogue of this period served as a kind of directory or address book, showing (under the column heading of “Rooms”) where the students were living (for example, “Mr. Smith's,” “Hon. Mr. Edwards”).163 The catalogue listed not only current students in the College, (p.35) but also some resident alumni and some graduates of other colleges who were doing postgraduate study in town. The listing of graduates studying law in New Haven may have been little more than a courtesy. In any event, 1824 is not when the practice of listing law students began. Michael Sansbury has examined the early catalogues and found law students listed as early as 1814.164 Furthermore, there is little correspondence between the list that Staples and Hitchcock kept of their students, which shows six students for 1824,165 and the 1824 Yale catalogue, which lists fourteen “Law Students,” of whom only four were studying with Staples and Hitchcock.
For two decades after Staples' departure in 1824, Hitchcock and Daggett were the Yale Law School's only faculty members. Daggett was the headliner whose reputation in public affairs helped attract students, Hitchcock was the insider who did most of the teaching. Hitchcock owned the library, and he held the lease for the school's premises.166 This pattern of a headliner whose other business prevented him from wholly regular teaching and an insider who bore the brunt of the teaching had been developed in the previous decade at Harvard. Harvard founded its law school in 1817 with Isaac Parker, the Chief Justice of Massachusetts, as the headliner and Asahel Stearns as the insider.167 After some troubles in the later 1820s, Harvard sacked both of them and brought in a new pair, U.S. Supreme Court Justice Joseph Story as the head-liner168 and John Hooker Ashmun, the successor proprietor of the Northampton law school,169 as the insider.
The deeper puzzle about Yale's affiliation with Hitchcock and Daggett's proprietary New Haven law school is not when it occurred but why. Why did Yale College want to have anything to do with this place? Obviously, the cachet and perhaps some of the library resources of Yale were attractive to the proprietors. But what was in it for Yale? Why should Yale lend its name to this local trade school, owned and operated for profit by a couple of local practicing lawyers? It is as though today's Yale University were to announce a merger with the New Haven School of Pipefitting or the New Haven Auto Driving School.
In order to understand Yale's disposition to do something about law, one has to recall the brief experiment in 1801 with the appointment of Elizur Goodrich as Professor of Law in Yale College. The aspiration to extend the mission of the American colleges to law had been widely voiced in the last decades of the eighteenth century, as an outgrowth of the American Revolution. There was a sense that it was important to educate the elite about the theory and character of the new republican institutions.170 At Yale, President Ezra Stiles proposed the creation of a chair in law as early as 1777.171 Both the University of Pennsylvania (as it was later known) and Columbia experimented with such (p.36) courses in the 1790s, appointing respectively U.S. Supreme Court Justice James Wilson and the future New York Chancellor James Kent to teach law to college students.172 Yale's appointment of Goodrich in 1801 was in the same vein. For various reasons, these experiments did not succeed, but they evidence how broad the inclination was among the American colleges to extend their mission to law.
By affiliating with the Hitchcock/Daggett law school, Yale was able to enlarge its sphere of activity to include law without having to commit itself financially or otherwise. Yale was pitifully endowed in this period,173 which made the proprietary structure of the Law School especially attractive. Yale was determined to quarantine itself from financial responsibility for the Law School. Into the 1870s, the Corporation was reiterating that the Law School's professors operated the school at their own risk.174 Thus, it was the Yale Corporation, not the law faculty, that insisted upon retaining the proprietorship form. The attraction to having the Law School in independent hands was that, in the event that this experiment with university legal education failed, it would be easier to pull the plug on outside venturers.
And fail it almost did. In 1845 and again in 1869, the Yale Law School neared extinction. In my next lecture, I shall recount the saga of Yale's two rescue operations. The second, in 1869, led to a profound rethinking of Yale's relations with the Law School. Yale began to make the commitment to have a law school worthy of the University. From the 1870s we begin to discern traits that subsequently came to define the Yale Law School—the linkage of law to other disciplines within the University; the pursuit of public law in defiance of the Litchfield-derived, private-law canon of the times; and the ability to stay small and humane in student relations as Yale's most prominent competitors grew ever larger. Intertwined with these developments would be the recognition that such a law school could not be financed from tuition. The Yale Law School would begin to develop the philanthropic basis that would be needed to support a place of the character it was about to become.
I wish to record my gratitude to Nancy Lyon, Yale University, Sterling Library, Department of Manuscripts and Archives, for help with the Yale archives; to Catherine Fields, director of the Litchfield Historical Society, for guidance on the Litchfield sources; and for the diligent research assistance of Stuart Chinn (YLS '03) and Robert James (YC '05).
(1) . I discuss these events at some length in my second lecture in this series, John H. Langbein, “Law School in a University: Yale's Distinctive Path in the Later Nineteenth Century,” infra this volume (hereafter Lecture II), text at notes 23–63.
(2) . These and other lapsed law schools are listed in Alfred Z. Reed, Training for the Public Profession of Law, 421–33 (Carnegie Foundation) (1921). This work, commissioned by the Carnegie Foundation, is hereafter cited as Reed, Carnegie. Stevens discusses Reed and his mission. See Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s, at 112–13, 120–21 & nn. 4, 6 (1983) (hereafter Stevens, Law School). Three Virginia schools are discussed in W. Hamilton Bryson & E. Lee Shepard, The Winchester Law School, 1824–1931, 21 Law & History Rev. 393, 399 (2003). Reed lists two of the three. I have been told that Wesleyan University (not on Reed's list) had a law school for a time in the mid-nineteenth century, but I have been unable to trace the claim.
(3) . Frederick C. Hicks, Yale Law School: From the Founders to Dutton: 1845–1869, at 25–27 (1936) (describing the premises into which the School moved in 1850 from its former location next door) (hereafter Hicks II). The cited work is the second of four pamphlets written by the Yale Law Librarian of the period. The others, in sequence, are Yale Law School: The Founders and the Founders' Collection (1935) (hereafter Hicks I); Yale Law School: 1869–1894: Including the County Court House Period (1937) (hereafter Hicks III); and Yale Law School: 1895–1915: Twenty Years of Hendrie Hall (1938) (hereafter Hicks IV). The four pamphlets were recently reissued in a one-volume photographic reprint edition as Frederick C. Hicks, History of the Yale Law School to 1915 (2001) (hereafter 2001 ed.). That volume preserves the page numbering of each pamphlet but also assigns continuous page numbers to the four pamphlets; thus, the material in Hicks II:25–27, cited supra, appears as 2001 ed. at 75–77. When citing the Hicks pamphlets, I cite the original pamphlet, and I supply a parallel citation to the additional page number assigned to it in the reprint edition for Hicks II, III, or IV (the numbers are the same for Hicks I). Hicks' four pamphlets constitute the only comprehensive account of the history of the first century of the Yale Law School. Although they do not compare well with such works as Goebel and Howard on Columbia (see infra note 51) or Warren on Harvard (see infra note 21), we are lucky to have them. The grievous shortcoming of Hicks' history is that he seldom disclosed his sources. He did not use footnotes, although he sometimes mentioned the sources in his narrative. When relying upon Hicks, I have attempted where possible to locate and supply citations to Hicks' likely sources. I have found no evidence of any fabrication in Hicks, and accordingly, I sometimes rely on information found in Hicks even when I have not been able to confirm the sources.
(4) . Hicks reproduces a photograph of the building, located just off Church Street. Hicks I, following 16. He explains, Hicks II:26, 2001 ed. at 76, that the photograph dates from after 1873. The site is further discussed at Hicks I:10.
(5) . Brooks Mather Kelley, Yale: A History 256 (1974). In addition, “[a]djoining the lecture room was a small office for the use of the instructors.” Hicks II:27, 2001 ed. at 77.
(7) . See [J. H. Baker], 750 Years of Law at Cambridge: A Brief History of the Faculty of Law (1996); F. H. Lawson, The Oxford Law School (1968). Regarding the failure of the effort to institute legal study at the new London University, founded in 1826, see Christopher W. Brooks & Michael Lobban, “Apprenticeship or Academy? The Idea of a Law (p.38) University, 1830–1860,” in Learning the Law: Teaching and the Transmission of Law in England, 1150–1900, at 353, 359–60 (Jonathan A. Bush & Alain Wijffels eds., 1999) (hereafter Bush & Wijffels).
(8) . Oxford was teaching Roman-canon law as early as the 1190s. See Peter Stein, Roman Law in European Legal History 56 (1999).
(9) . I have discussed the teaching of Roman Law at Cambridge in John H. Langbein, Trinity Hall and the Relations of European and English Law from the Fourteenth to the Twenty-First Centuries, in The Milestones Lectures 75 (Trinity Hall, 2001).
(10) . Report from the Select Committee on Legal Education (1846), quoted in William Twining, Blackstone's Tower: The English Law School 25 (1994). The Committee's work and report are discussed in Peter Stein, “Legal Theory and the Reform of Legal Education in Mid-Nineteenth Century England,” in id., The Character and Influence of Roman Civil Law, 231, 234–38 (1988). He reprints the Committee's “concluding resolutions,” id. at 248–50, which begin by noticing the “unsatisfactory” contrast with legal education in Europe and America.
(11) . Albert Venn Dicey, Can English Law Be Taught at the Universities? An Inaugural Lecture 1 (London, 1883).
(12) . Systematic law reporting in the United States began only in 1804, in Massachusetts and New York. I have discussed the circumstances in John H. Langbein, Chancellor Kent and the History of Legal Literature, 93 Columbia L. Rev. 547, 574–75 (1993) (hereafter Langbein, Kent).
(13) . On the glory days of the inns, see John H. Baker, The Third University of England: The Inns of Court and the Common-Law Tradition (Selden Soc., 1990); see also id., An Introduction to English Legal History 159–62 (4th ed. 2002); Wilfred R. Prest, The Inns of Court under Elizabeth I and the Early Stuarts, 1590–1640 (1972).
(14) . On the decline of the inns, see 6 William Holdsworth, A History of English Law 48–193 (1922–66) (16 vols.) (hereafter Holdsworth, HEL).
(15) . 12 Holdsworth, HEL, supra note 14, at 16.
(16) . David Lemmings, Gentlemen and Barristers: The Inns of Court and the English Bar, 1680–1730, at 95–97 (1990); 12 Holdsworth, HEL, supra note 14, at 85–89.
(17) . The textbook and treatise tradition in England was slender until the end of the eighteenth century. See A. W. B. Simpson, The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature, 48 U. Chicago L. Rev. 632 (1981).
(18) . Lemmings, supra note 16, at 101–3.
(19) . The practice of commonplacing was by no means limited to law. See Earle Havens, Commonplace Books: A History of Manuscripts and Printed Books from Antiquity to the Twentieth Century (2001), drawing on examples from the collections of Yale's Beinecke Library.
(20) . Lemmings, supra note 16, at 95–97.
(21) . See generally Paul M. Hamlin, Legal Education in Colonial New York (1939). Apprenticeship education thrived throughout the nineteenth century, especially away from urban centers, and it survived well into the twentieth century. On the patterns of self-study and apprenticeship in colonial times, see 1 Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America 126–50 (1908) (3 vols.) (hereafter Warren, Harvard).
(22) . For the text of an indenture of apprenticeship from 1723, see Hamlin, supra note 21, at 165–66.
(23) . On the scarcity of law books in colonial America, see Charles Warren, A History of the American Bar 157–64 (1911).
(24) . See Reed, Carnegie, supra note 2, at 82–84; Charles R. McKirdy, The Lawyer as Apprentice: Legal Education in Eighteenth Century Massachusetts, 28 J. Legal Ed. 124, 125 & n. 10 (1976).
(25) . See George B. Shepherd & William G. Shepherd, Scholarly Restraints? ABA Accreditation and Legal Education, 19 Cardozo L. Rev. 2091 (1998), showing how ABA cartelization suppresses new schools that would offer cheaper and more efficient legal education, raising entry barriers that disadvantage the poor.
(26) . See the document captioned “William Livingston's Criticism of the Treatment of Apprenticed Law Clerks,” reprinted in Hamlin, supra note 21, at 167. The indenture of apprenticeship between Livingston's father and the lawyer-master, James Alexander, appears id. at 41–42.
(27) . Thomas Jefferson to John G. Jefferson, June 11, 1790, in The Writings of Thomas Jefferson 180 (1892), quoted in Marian McKenna, Tapping Reeve and the Litchfield Law School 14 n. 38 (1986) (hereafter McKenna, Litchfield). Further on Jefferson's views, see Morris L. Cohen, Thomas Jefferson Recommends a Course of Law Study, 119 U. Pennsylvania L. Rev. 823, 827–28 (1971).
(28) . William Blackstone, Commentaries on the Laws of England 32 (Oxford 1765–69) (4 vols.) (emphasis supplied) (hereafter Blackstone, Commentaries). Joseph Story tracked these themes in his critique of apprenticeship, written in part to tout the opening of the Harvard Law School in 1817. He disparaged “the common delusion, that the law may be thoroughly acquired in the immethodical, interrupted, and desultory studies of the office of a practicing counsellor,” unless “the student shall have laid the foundation in elementary principles, under the guidance of a learned and discreet lecturer…. [W]ithout such elementary instruction, [the student] will … become a patient drudge, versed in the forms of conveyancing and pleading, but incapable of ascending the principles that govern them …” Joseph Story, “Course of Legal Study,” reprinted in The Miscellaneous Writings of Joseph Story 66, 92 (William W. Story ed., Boston, 1852), cited in Daniel R. Coquillette, “Mourning Venice and Genoa”: Joseph Story, Legal Education, and the Lex Mercatoria, forthcoming, October 2002 draft, at 11.
(29) . Henry Sumner Maine, Dissertations on Early Law and Custom 389 (New York ed., 1883).
(30) . “By the end of the seventeenth century … the great bulk of the litigation of the Kingdom was conducted through the various forms of action which had developed from trespass….” T. F. T. Plucknett, A Concise History of the Common Law 375 (5th ed., 1956).
(31) . Plucknett wrote of Blackstone that “in his pages we find the first comprehensive attempt to state (as far as was then possible) the whole of English law in the form of substantive rules.” Id. at 382.
(32) . 12 Holdsworth, HEL, supra note 14, at 91–92; Lucy Sutherland, William Blackstone and the Legal Chairs at Oxford, in Evidence in Literary Scholarship 229 (R. Wellek & A. Riberio eds., 1970).
(33) . On the university politics surrounding the naming of Blackstone to the Vinerian chair, see David J. Ibbetson, “Charles Viner and His Chair: Legal Education in Eighteenth-Century Oxford,” in Bush & Wijffels, supra note 7, at 315, 321–28.
(34) . I Blackstone, Commentaries 33. Holdsworth reprints the text of an advertisement in which Blackstone expressed similar aspirations for his first lectures on English law in 1753. 12 Holdsworth, HEL, supra note 14, at 745–46.
(35) . “Even the hypercritical Bentham admitted that [Blackstone's lectures] were well attended by the standards of the other professors, in so far as [Bentham] was one of thirty to fifty auditors in Michaelmas 1763.” David Lemmings, Blackstone and Law Reform by Education: Preparation for the Bar and Lawyerly Culture in Eighteenth-Century England, 16 Law & History Rev. 211, 226 (1998), citing 10 The Works of Jeremy Bentham 45 (J. Bowring ed., Edinburgh, 1838–43).
(36) . Blackstone sat briefly on the court of King's Bench, then for a decade on Common Pleas. His career is succinctly recounted in Gareth H. Jones, “Introduction,” The Sovereignty of the Law: Selections from Blackstone's Commentaries on the Laws of England xvii–xxi (1973). On Blackstone's judicial service, see Edward Foss, Biographia Juridica: A Biographical Dictionary of the Judges of England 99 (1870). Blackstone's sources and influence have been much discussed, but a careful scholarly biography remains to be written. There is a pair of adulatory accounts by American writers: Lewis C. Warden, The Life of Blackstone (1938), and David A. Lockmiller, Sir William Blackstone (1938). A shorter sketch, privately published, appeared recently: Ian Doolittle, William Blackstone: A Biography (2001).
(37) . On the “period of eclipse” during the years 1793–1880, see Harold G. Hansbury, The Vinerian Chair and Legal Education 79–97 (1958). On the parallels between the Vinerian chair and the chairs of national law founded in European and American universities in the eighteenth century, see M. D. Gordon, “The Vinerian Chair: An Atlantic Perspective,” in The Life of the Law 195 (P. Birks ed., 1993). The American chairs for the teaching of law to undergraduates in the colleges are noticed infra, note 82, and text at notes 150–54, 170–72.
(39) . The course of study at Harvard in 1825, according to Asahel Stearns, entailed “[i]n the first place a reading of Blackstone, more or less particular, of the whole work. This practice has been found by experience to be highly useful.” 1 Warren, Harvard, supra note 21, at 333 (quoting Stearns' report to the Harvard overseers, spelling modernized).
(40) . Speaking of the course he was teaching at Yale, David Daggett wrote that “Blackstone's Com[mentaries] are the outlines, and I endeavor to fill up certain of his topics such as mortgages, evidence, pleadings, contracts, equity, etc., etc.” Daggett to James Dana, Dec. 9, 1831, David Daggett Papers, MS 162, series I, box 3, folder 88, at 1, Yale Univ. Sterling Libr., Dept. of Manuscripts and Archives (hereafter Sterling M&A), reproduced in Hicks II:51, 2001 ed. at 101 (spelling and punctuation modernized) (document hereafter cited as Daggett, Letter).
(41) . In addition to the works by Alan Watson, cited infra note 42, see Michael Lobban, The Common Law and English Jurisprudence: 1760–1850, at 19–26 (1991); John W. Cairns, Blackstone, An English Institutist: Legal Literature and the Rise of the Nation (p.41) State, 4 Oxford J. Leg. Studies 318 (1984); John W. Cairns, Institutional Writings in Scotland Reconsidered, 4 J. Leg. History 76 (1983).
(42) . See Alan Watson, Roman Law and Comparative Law 147–81 (1991), which expands on id., The Structure of Blackstone's Commentaries, 97 Yale L.J. 795 (1988). On the European-wide phenomenon of institutionalist legal literature, see Klaus Luig, The Institutes of National Law in the Seventeenth and Eighteenth Centuries, 17 Juridical Rev. (N.S.) 193 (1972) translating id., Institutionenlehrbücher des nationalen Rechts im 17. und 18. Jahrhundert, 3 Ius Commune 64 (1970).
(43) . I have elsewhere explained why. John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 Columbia L. Rev. 1168, 1178–79 (1996).
(44) . 1 Blackstone, Commentaries 430.
(45) . 12 Holdsworth, HEL, supra note 14, 712, 714–15.
(46) . William Blackstone, Commentaries on the Laws of England (Philadelphia 1771–72) (4 vols.), discussed in Catherine S. Eller, The William Blackstone Collection in the Yale Law Library: A Bibliographical Catalogue 37 (1938). As a result of aggressive marketing and pricing (facilitated by not having to pay Blackstone any royalties on a pirate edition), Bell was able to get 840 subscribers to buy 1,587 copies. The list of subscribers appears in the front papers to Volume Four. Most were individuals, but some were booksellers ordering bulk lots. See Whitney S. Bagnall, Robert Bell and the Selling of Blackstone's Commentaries (unpublished paper, Jul. 19, 2000; Bagnall is curator of rare books and manuscripts at Columbia Law School).
(47) . Catalogued in Eller, supra note 46.
(48) . See the compilation of “early private law schools,” in Reed, Carnegie, supra note 2, at 431–33; see also Craig E. Klafter, Reason over Precedents: Origins of American Legal Thought 133–77 (1993) (discussing the proprietary law schools founded before 1830).
(49) . 1 Warren, Harvard, supra note 21, at 364.
(50) . At Northampton Ashmun had been the colleague of and then the successor to Judge Samuel Howe, a Litchfield alumnus who died in 1828. See Samuel H. Fisher, Litchfield Law School: 1774–1833: Biographical Catalogue of Students 65 (1946) (hereafter Fisher, Catalogue) (entry for Howe). The Northampton school, opened in 1823, was operated from Howe's law office. It advertised that students would have access to his “extensive” library. Elizabeth Forgeus, The Northampton Law School, 41 Law Libr. J. 11, 11–12 (1948). When Harvard hired Ashmun to the Royall chair in 1829, “the Northampton school came to an end—although it might almost be said to have merged into the Harvard Law School, since a group of the students decided to follow Ashmun to Harvard.” Id. at 13.
The method of instruction in Northampton was advertised to be “by means of lectures, recitations, and discussions” of texts. Id. at 12. This recitation method characterized the early university law schools and is discussed in Lecture II, text at notes 8–22. A fourvolume set of student notes from the Northampton School, noticed by Forgeus, supra, at 11, survives in the Yale collection. “Manuscript Notes of Lectures by Samuel Howe and John Hooker Ashmun at the Northampton Law School, taken down by Nathaniel J. Lord” (1825–27) (Yale Law Libr. RB shelfmark MssB +L88).
(p.42) Unlike the early Yale Law School, the early Harvard Law School enjoyed significant financial support from the university. Using the Royall devise, Harvard took the active hand in founding its law school in 1817 under Isaac Parker and Asahel Stearns, and the university provided its law school with rooms and books. But the main instructor, Stearns, received no salary; he pocketed whatever tuition income his efforts could generate. Reed, Carnegie, supra note 2, at 138. Reed complained that Harvard thereby “lent the prestige of her name to the doctrine that calling a practitioner a university professor is equivalent to making his proprietary law class a university school….” Id. at 140. Although Stearns was “[t]he working member of the Faculty,” he prudently remained in practice and “never relinquished the office of County Attorney….” The Centennial History of the Harvard Law School: 1817–1917, at 6–7 (1918). Stearns has surfaced lately in Fisher's study of Massachusetts prosecutorial practice, serving as county prosecutor for Middlesex in the 1820s and early 1830s. See George Fisher, Plea Bargaining's Triumph, 109 Yale L.J. 857, 869 n. 19, 877–79 (2000). From 1829, Harvard used the funds contributed by Nathan Dane to provide the salary for Joseph Story. See R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic 240 (1985).
(51) . Dwight was already on the staff of Hamilton College as an undergraduate teacher of history, political science, and law. He proposed founding a graduate law school, which began under Hamilton's auspices in 1853. Tuition was $20 per term, of which Dwight kept $15; the classes met at his home. The year before Dwight left for Columbia, his law school had fifteen students. Walter Pilkington, Hamilton College: 1812–1962, at 116–17 (1962). The Columbia trustees moved Dwight to Yale by guaranteeing him a $2,000 minimum income in the event his fee income from tuition fell short of that. Julius Goebel Jr. [& Samuel F. Howard], A History of the School of Law: Columbia University 29 (1955) (hereafter Goebel & Howard). Dwight's success at Columbia turned his professorship into a gusher. In 1878 Columbia effectively bought in Dwight's proprietorship by giving him “the then tremendous salary of $15,000 a year, twice that of any other Columbia professor.” Id. at 83.
Columbia's short-lived effort to launch legal education under Chancellor Kent in the 1820s may have prevented Kent from founding a proprietary law school of his own. Forced to retire from the bench at age sixty, Kent wrote his long-time associate, the New York law reporter William Johnson, that he was considering “opening a Law School in Albany upon the plan of the Litchfield Law School.” James Kent to William Johnson, Sept. 27, 1823, Library of Congress, Kent Papers. He changed his mind a few weeks later when the Columbia trustees offered him the professorship in law that he had held there in the 1790s, and which had been dormant in the interval. See Trustees of Columbia College to Kent, Nov. 3, 1823, Kent Papers, Library of Congress, discussed in Langbein, Kent, supra note 12, at 564; see also infra, note 109.
(52) . Fisher, Catalogue, supra note 50, at 2.
(53) . McKenna, Litchfield, supra note 27, at 107, n. 1; see also id. at 40.
(54) . Fisher, Catalogue, supra note 50, at 3–4.
(55) . Discussing “imitators of the Litchfield School,” Reed points to “[m]ore than a dozen such competing ventures … known to have been started during the life of the Litchfield school, in seven states, ranging from Massachusetts to North Carolina.” Reed, Carnegie, supra note 2, at 132. Including schools that started after Litchfield's demise, (p.43) Reed counts “over twenty such experiments prior to 1850. The actual number was probably much greater.” Id.; see also his compilation of these schools, id. at 431–33.
(57) . Root later served as Chief Justice of Connecticut from 1796 to 1807. He is now remembered as the compiler of one of the earliest American law reports, Reports of Cases Adjudged in the Superior Court and Supreme Court of Errors … 1789 to … 1793 (1798). See 16 Dictionary of American Biography 148 (D. Malone et al. eds., 1928–37) (hereafter DAB).
(58) . McKenna, Litchfield, supra note 27, at 35.
(59) . Lynne Templeton Brickley, “Sarah Pierce's Litchfield Female Academy,” in To Ornament Their Minds: Sarah Pierce's Litchfield Female Academy 1792–1833, at 20 (Catherine Fields & Lisa Knightlinger eds., 1993) (Litchfield Historical Society).
(60) . Including Ephraim Kirby, who in 1789 would publish the first American law reports, Reports of Cases Adjudged in the Superior Court of the State of Connecticut, from the Year 1785, to May 1788; with Some Determinations of the Supreme Court of Errors (Litchfield, 1789). See 10 DAB 424.
(61) . Reeve had tutored her in her youth. On the courtship, see McKenna, Litchfield, supra note 27 at 27–34.
(62) . Id. at 41–42; Fisher, Catalogue, supra note 50, at 28. Reeve had previously tutored Aaron Burr in Burr's youth. McKenna, Litchfield, supra note 27, at 26–27.
(63) . Id., at 22–29.
(64) . For example, Stephen R. Bradley of the Yale College class of 1775 became one of Vermont's first U.S. senators. Oliver Wolcott Jr. and Uriah Tracy were classmates in the Yale College class of 1778. Tracy served for a decade as U.S. Senator from Connecticut. Wolcott was the son and grandson of Connecticut governors. He later held that job himself, then succeeded Alexander Hamilton as Secretary of the Treasury. See Fisher, Catalogue, supra note 50, at 25, 127, 138; McKenna, Litchfield, supra note 27, at 55–57.
(65) . Recent research has shown that similar developments were occurring in London. “[B]y the turn of the century, there were a number of experienced pleaders who took large numbers of pupils.” Christopher W. Brooks & Michael Lobban, “Apprenticeship or Academy? The Idea of a Law University, 1830–1860,” in Bush & Wijffels, supra note 7, at 353, 356. “The elder Joseph Chitty, for instance, often had more than twenty pupils at one time, whom he provided with lectures, and the students formed their own mooting society to discuss what they learned. Chitty also became one of the most prolific legal writers of his age by converting his lectures into texts for a wider public.” Id. at 358. By the 1820s, several law lecturers were offering proprietary courses. Id. at 358 n.23.
(66) . See McKenna, Litchfield, supra note 27, at 177–78 (republishing the rules that Reeve promulgated to govern the circulation of library books).
(67) . Reeve was a judge of the superior court from 1798 to 1814 and chief justice of the supreme court of errors from 1814 to 1816. For Reeve, see 15 DAB 465; for Gould, see 7 DAB 453, and Fisher, Catalogue, supra note 50, at 55.
(68) . McKenna, Litchfield, supra note 27, at 151, counting enrollments of persons catalogued in Fisher, Catalogue, supra note 50.
(69) . Reeve did not keep good records in the early years of the school. Reliable enrollment records begin when Gould joins him in 1798.
(70) . The number of persons for whom Fisher was able to supply biographical details. Fisher, Catalogue, supra note 50. There are some ghosts on Fisher's list, people whom Fisher mistakenly reckoned as Litchfield students in the early years for which Reeve kept no records. One such entry is No. 757, for Seth Staples, founder of the New Haven law school that became Yale. The mistaken attribution is discussed infra, notes 140–41.
(71) . Brooke Harlow, “Litchfield's Legacy in Law: A Study of the Litchfield Law School's Influence on Legal Training in America: 1784–1833,” Appendix 3 (unpaginated) (unpublished student paper) (Apr. 17, 1996) (hereafter Harlow, Legacy). Harlow's count is based upon the entries in Fisher, Catalogue, supra note 50. McKenna reports totals that are smaller than Harlow's. McKenna, Litchfield, supra 27 at 145, apparently taking her numbers from 1 Warren, Harvard, supra note 21, at 181–82. Warren's figures came from an earlier catalogue that has been superseded by Fisher's work.
(72) . Brooke Harlow, “The Litchfield Law School: An Examination of Its Influence and Impact in the South” 3 (Mar. 29, 1996) (unpublished student paper) (hereafter Harlow, South), tabulating entries in Fisher, Catalogue, supra note 50. What accounted for the disproportionate number of Georgians at Litchfield I cannot say. Regarding cultural and commercial links between Connecticut and Georgia, see O. Burton Adams, Yale Influence on the Formation of the University of Georgia, 51 Georgia Hist. Q. 175 (1967); Constance Green, Eli Whitney and the Birth of American Technology, 40–96 (Whitney's cotton gin, manufactured in New Haven, was developed for the Georgia market, but led to hostility over his patent). (I owe these references to Joyce Chaplin.)
(73) . Until 1833, when both schools closed.
(74) . See the valuable modern account by Brickley, supra note 59. See also Emily Noyes Vanderpoel, Chronicles of a Pioneer School from 1792 to 1833: Being the History of Miss Sarah Pierce and Her School (1903).
(75) . In research that continues, Brickley has been able to document eighty-four marriages between law students and women attending the female academy. See Litchfield Female Academy Collection, Brickley Research File, LHS Archives. Regarding the patterns of courtship in Litchfield, see E. D. Mansfield, Personal Memories: 1803–1843, at 128–30 (Cincinnati, 1879).
(76) . Andrew M. Siegel, “To Learn and Make Respectable Hereafter”: The Litchfield Law School in Cultural Context, 73 N.Y.U. L. Rev. 1978, 2011 (1998).
(77) . Anon., reprinted in Dwight C. Kilbourn, The Bench and Bar of Litchfield County, Connecticut: 1709–1909, at 188, 189 (1909). (The Mrs. Reeve being quoted was Tapping Reeve's second wife and former housekeeper, whom he married in 1798, a year after the death of his first wife, Sally Burr Reeve, who has been mentioned above in text. See McKenna, Litchfield, supra note 27 at 87, 92.
(78) . Lemmings, supra note 16, at 93–95 & table 4.2a.
(79) . McKenna supplies a count of Litchfield students by undergraduate college attended. McKenna, Litchfield, supra note 27, at 146. Harlow reports larger numbers, tabulated from Fisher, Catalogue, supra note 50. Harlow, Legacy, supra note 71, Appendix 3 (unpaginated). Fisher was able to locate biographical information on 908 of the known 1,016 Litchfield students. Harlow reports that 588 of these 908, or nearly two thirds, are shown as having attended college.
(80) . Harlow reports that 225 students, or 25 percent of the 908 for whom Fisher was (p.45) able to compile biographical accounts, attended Yale College. Harlow, Legacy, supra note 71, Appendix. McKenna counted 185, or 20 percent. McKenna, Litchfield, supra note 27, at 146.
(81) . Harlow counts fifty-seven from Princeton, forty-two each from Harvard and nearby Union, thirty-four each from Brown and Columbia, twenty-eight from Williams, and twenty-six from Dartmouth. Harlow, Legacy, supra note 71, Appendix. Harlow also noticed, in an earlier draft, that the Princeton enrollment correlated with the high enrollment from the South; twenty-five of the fifty-seven Princeton graduates who attended Litchfield came from southern states. Harlow, South, supra note 72, at 4.
(82) . There was also interest in the early national period in teaching law, mostly public and constitutional law, to undergraduates within the liberal arts curriculum. See Paul D. Carrington, The Revolutionary Idea of University Legal Education, 31 William & Mary L. Rev. 527 (1990); 1 Warren, Harvard, supra note 21, at 165–80. A trickle of efforts at programs of this sort continue to the present, but in general, the rise of the university law schools as separate professional schools and the shaping of the discipline of political science as a field centered on public law has largely excluded the study of private law and procedure from American undergraduate curricula.
(83) . In contrast to Sarah Pierce's female academy, which provided diplomas for its young women. One is reproduced in Vanderpoel, supra note 74, opposite 310.
(84) . E.g., “Mr. Henry Starr has read law in my office and constantly attended the lectures there delivered from the 24th day of October 1809 to the 10th day of August, 1810.” Quoted by McKenna, Litchfield, supra note 27, at 59–60, further discussed, id. at 141.
(85) . Discussed in Reed, Carnegie, supra note 2, at 79–84.
(86) . Toward the end of its existence, the Litchfield Law School was conducting weekly learning exercises that were called examinations, but which were not tests in the modern sense. These sessions were described in an alumni publication in 1828:
The examinations, which are held every Saturday, upon the lectures of the preceding week, consist of a thorough investigation of the principles of each rule, and not merely of such questions as can be answered from memory without any exercise of … judgment. These examinations are held by Jabez W. Huntington, Esq., a distinguished gentleman of the bar, whose practice enables him to introduce frequent and familiar illustrations, which excite an interest, and serve to impress more strongly upon the mind the knowledge acquired during the week.
“Advertisement to First Edition 1828,” reprinted in Kilbourn, supra note 77, at 193, 194. We see in this practice some concession toward the recitation method of instruction then being practiced by Litchfield's competitors at Harvard and Yale, but the technique was so foreign to Gould that he delegated the work to a local practitioner.
(87) . Quoted in William P. LaPiana, Logic and Experience: The Origin of Modern American Legal Education 51 (1994).
(88) . Id. at 14, 57.
(89) . For a published list of Litchfield notebooks, see McKenna, Litchfield, supra note 27, at 183–86. Lynne Templeton Brickley has compiled a larger list, now containing 108 entries, for the Litchfield Historical Society (hereafter LHS). “Litchfield Law School (p.46) Student Law Notebooks,” (Dec. 2001) Tapping Reeve Collection, Brickley Research File, LHS Archives.
(90) . Thayer remarked, following one of Blackstone's American editors, that as late as 1817 in a set of Litchfield lecture notes from that year, “‘references to Blackstone not only outnumber those of any other book, but may be said to outnumber all the rest together.”’ James Bradley Thayer, The Teaching of English Law at Universities, 9 Harvard L. Rev. 169, 171 (1895), quoting (not entirely accurately) the preface to 1 William Blackstone, Commentaries on the Laws of England x. n. (William Hammond ed., San Francisco, 1890).
(91) . Bryson emphasizes that in Virginia, both George Wythe and St. George Tucker based their lectures on Blackstone. W. Hamilton Bryson, Essays on Legal Education in Nineteenth-Century Virginia 14–15 (1998).
(92) . Zephaniah Swift, A System of the Laws of the State of Connecticut (Windham, 1795–96). (Swift is reported to have operated a competing law school in Windham. Reed, Carnegie, supra note 2, at 431.)
(93) . James Gould, Law School at Litchfield, United States L.J. 400, 403 (1822–23) (letter report from Gould). In the afternoon the students consulted books from the school's library in order to read from “digests, abridgments, or treatises, on the title of which [the day's] lecture treats….” Id.
(94) . Judges and professional books speak “not as school-masters to novices, but as instructors to the profession.” Id. at 402 (emphasis original).
(95) . Gould's plan of instruction, as he called it, echoed Blackstone in its aspiration to teach the common law “not as a collection of insulated [sic; isolated?] positive rules,” but rather “as a system of connected, rational principles ….” Id. (emphasis original).
(97) . Describing his course in 1822, Gould spoke of his lifelong effort to update his “original digest” with new decisions. “From these notes” he delivered his Litchfield Law School lectures. Gould, supra note 93, at 401.
(98) . The practice is described in the so-called “Advertisement to First Edition 1828,” of the Litchfield alumni catalogue, reproduced in Kilbourn, supra note 77, at 193, 194. A student's memoir:
We had desks, with pen and ink, to record the important principles and authorities. The practice of Judge Gould was to read the principle from his own manuscript twice distinctly, pausing between, and repeating in the same manner the leading cases. Then we had time to note down the principle and cases. The remarks and illustrations we did not note. After the lecture we had access to a law library to consult authorities…. I … immediately returned home, and copied out into [my] lecture [book] all the principles and cases.
E. D. Mansfield, supra note 75, at 127–28.
(99) . Gould, supra note 93, at 402.
(101) . Id.
(102) . Gould, supra note 93, at 404. He explained that “there is kept up, in my lecture-room (p.47) a Moot-Court, in which [the students], once in each week, argue before me, questions of law, on a case given out by myself, for the purpose…. [T]wo students [are] heard as counsel, on each side.” Id. (emphasis original). Two volumes of manuscript notebooks containing arguments used in the years 1796–98 survive in the Litchfield Historical Society. See Tapping Reeve Collection, Research Box 1, LHS Archives. These sources have been examined in Donald F. Melhorn Jr., A Moot Court Exercise: Debating Judicial Review Prior to Marbury v. Madison, 12 Constitutional Commentary 327, 331 n.25 (1995).
(103) . Describing the Yale curriculum in 1831, Daggett replied to an inquiry from a prospective student that “we have no regular terms…. We receive students for 6 months or more…. [M]y course occupies about 14 or 15 Months.” Daggett, Letter, supra note 40, at 1–2. At Harvard Law School, “[b]efore 1836, students came and went as they saw fit, exactly as they might have done in a lawyer's office. There was no regular time of entering or leaving.” Roscoe Pound, “The Law School: 1877–1929,” in The Development of Harvard University Since the Inauguration of President Eliot: 1869–1929, 472, at 490 (S. E. Morison ed., 1930).
(104) . LaPiana, supra note 87, at 14–15; Anthony Chase, The Birth of the Modern Law School, 23 American J. Legal History 329, 332 (1979).
(105) . See Charles C. Goetsch, “The Litchfield Law School: A Modern View” (unpublished paper presented to the annual meeting of the American Society for Legal History, fall 1979, copy on file with Litchfield Historical Society). Goetsch recently deposited his collection of photocopies of Litchfield notebooks with the library of the University of Connecticut Law School; see his account in U. Connecticut Law School Report (Win. 2002), at 27.
(106) . Speaking in 1821, Story already counted above 150 volumes of American law reports and was beginning to worry about the new “danger … that we shall be overwhelmed with their number and variety.” Joseph Story, An Address Delivered before the Members of the Suffolk Bar, at Their Anniversary, on the 4th of September 1821, at 13 (Boston 1829) (Yale Law Libr. RB shelfmark TSt765ad 1829).
(107) . One set of Litchfield notes has been transcribed by Tracy Thompson (YLS '97) and deposited in the Yale Law Library rare book room. The manuscript, comprising seven bound volumes, is in the hand of Aaron Burr Reeve, the son of Tapping Reeve, and dates from 1802–1803 (Yale Law Libr. RB shelfmark MssB L71 1802).
(108) . Of course, constitutional questions arose in other settings. It is reported that Reeve commented on the power of judicial review of Acts of Congress in the context of lecturing on the construction of statutes. Melhorn, supra note 102, at 334–35 (drawing upon the student notes of Asa Bacon, 1794, now held in the Litchfield Historical Society).
(109) . James Kent, Commentaries on American Law (4 vols.) (New York 1826–30). The work was based upon a set of lectures that Kent presented at Columbia in the 1820s after retiring from the New York chancery bench. The circumstances are discussed in Langbein, Kent, supra note 12, at 564–66.
(110) . Indeed, Kent's chapters on American constitutional law were packaged as a onevolume work in North America, and were translated for German, Argentinean, and Mexican editions, cited id. at 585 nn. 179–81.
(111) . See 1 James Oldham, The Mansfield Manuscripts and the Growth of English Law (p.48) in the Eighteenth Century 223–44 (contract and quasi-contract), 450–78 (insurance) (1992) (2 vols.).
(112) . Id. at 223.
(113) . For a topical schedule of the curriculum, constructed from Litchfield notes of the period 1794–1829, see Samuel H. Fisher, The Litchfield Law School, 1775–1833, 6–8 (1933) (Tercentenary Commission of the State of Connecticut).
(114) . Gould, supra note 93, at 402.
(115) . McKenna, Litchfield, supra note 27, at 151.
(116) . 1 Warren, Harvard, supra note 21, at 182.
(117) . From as high as forty-four in 1823 to the teens in 1827 and low teens in the 1830s. In 1833 there were only six students. See the table in McKenna, Litchfield, supra note 27, at 151. (McKenna's student counts are not wholly reliable—see supra note 71—but they are accurate enough to show the trend.)
(118) . It appears that the nascent Yale Law School was also competing for students who had merely intended to use New Haven as a transit center en route to Litchfield. According to Gould, more than three quarters of Litchfield-bound students made the trip via New Haven (mostly, one would assume, on account of the port of New Haven). Gould to Roger S. Baldwin, Nov. 15, 1828, Sterling M&A, Baldwin Family Papers, group 55, box 17, folder 195, at 1. According to Gould, these students were being subjected to “a systematic influence, exerted in New Haven … to induce them to remain at New Haven.” Id. (emphasis original), which Gould viewed as “war in disguise.” Id. at 2 (emphasis original). Among the misrepresentations about which Gould complained was the report that he was ceasing to lecture. Id. at 3. Gould said had “no suspicions that the teacher of the New Haven School [presumably Samuel Hitchcock] has any concern in these measures,” but he asked Baldwin to use his influence to stop this “officious, systematic, undiscriminating scheme of promoting one establishment, at the expense of others….” Id. at 3 (emphasis original).
(119) . McKenna voices a somewhat contrary and in my view wishful account that all Litchfield needed to keep on going was a few good men. “If Litchfield had had dynamic young law teachers vigorously carrying on its course of study, it could have gone on indefinitely doing the work it had been doing,” McKenna, Litchfield, supra note 27, at 174, but this begs the question of why there were none. McKenna does concede that “no unendowed private school could for long have maintained competition with schools supported by a permanent endowment, and forming part of an established university.”
(120) . Id. at 160–65.
(122) . Noted in Reed, Carnegie, supra note 2, at 131, who faults Litchfield for remaining in the lecture mode when the textbook was making the lectures obsolete. Simeon Baldwin was also alluding to that factor when he suggested that the appearance of published works such as Swift, supra note 92, and Kent's Commentaries, supra note 109, undercut the Litchfield model. See McKenna, Litchfield, at 174–75 & n. 91, citing Baldwin.
(126) . See Hicks III:32, 2001 ed. at 148, quoting the Yale Law School catalogue for 1887–88: “The method of instruction … is mainly that of recitations [from] … standard text-books….” Yale Law School: 1887–88 Annual Calendar and Alumni Record 7 (1887). Hicks quotes this passage, Hicks III:33, 2001 ed. at 149.
(127) . Hicks III:32, 2001 ed. at 148.
(128) . See Stevens, Law School, supra note 2, at 70.
(129) . Reed noticed how the resistance of Reeve and Gould to publishing their lectures contrasted with Kent and Story, who, by turning theirs into texts, facilitated the shift to the textbook-based system of instruction that characterized the early university law schools. Reed, Carnegie, supra note 2, at 131. Both Reeve and Gould did, however, publish specialized legal monographs that trace back to their lectures. Reeve wrote the first American treatise on domestic relations law. See Tapping Reeve, The Law of Baron and Feme, of Parent and Child, of Guardian and Ward, of Master and Servant, and of the Powers of Courts [of] Chancery: with an Essay on the Terms, Heir, Heirs, and Heirs of the Body (New Haven, 1816) (Yale Law Libr. RB shelfmark T R2598 1816). The work went through several editions in the hands of later editors. The third edition (Amasa J. Parker & Charles E. Baldwin eds., Albany, 1862) has been twice reprinted (in 1970 and 1998), reflecting the surge of interest in gender issues. The book collects authority from many states and was preoccupied with “the need to Americanize the English common law….” Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America 21 (1985). Reeve also published a book on American intestacy law. Tapping Reeve, A Treatise on the Law of Descents in the Several United States of America (New York, 1825). Gould wrote a book on civil pleading that went through a dozen editions, the last in 1899. The first edition was A Treatise on the Principles of Pleading in Civil Actions (Boston, 1832). A photographic reprint was published in 2002.
(130) . 1 Warren, Harvard, supra note 21, at 304–7.
(131) . On the decisive role of Dane's contributions to the refounding of the school under Story, see Newmyer, supra note 50, at 240–41, 252–53. On the efforts of Story and the Harvard overseers to solicit books for the law library, see id. at 251–52.
(134) . Franklin B. Dexter, Biographical Notes of Graduates of Yale College 310–11 (1885–1912) (6 vols.) (hereafter Dexter, Yale Biographies); Hicks I:4–5.
(135) . Hicks I:4.
(136) . Minus whatever he sold to Hitchcock when he disengaged from New Haven, Staples' collection as catalogued for auction by his estate in 1862 totaled 490 titles, embracing more than 1,000 volumes. See Catalogue of the Private Law Library of the Late Seth P. Staples, Esq. (Bangs, Merwin & Co., New York, 1862) (Yale Law Libr. RB shelfmark BiblB B22).
(137) . “List of Students Who Have Entered the Office” (1819–24) (Yale Law Libr. RB shelfmark YL 14 1824) (photocopy of extract from Staples and Hitchcock law office cash and receipt book, 1817–27). This source is reprinted without attribution in Hicks I:12–14.
(138) . Simeon E. Baldwin, “Law School of Yale College,” extract from the Year Book of the City of New Haven for 1872–73, at 3 (Yale Law Libr. RB shelfmark YL 111 1873). Hicks reports a slightly different version of this legend, Hicks I:9.
(139) . Tracy Thompson (YLS '97) has drawn attention to a cache of correspondence from Staples to his Yale College classmate, Thomas Day, beginning in 1797 and running, with gaps, to 1839. Six letters from the years 1797–98, all written from New Haven, allow Thompson to conclude that Staples “remained in New Haven almost constantly during the period in which he is reported to have studied with Reeve.” Tracy L. Thompson, “The Correspondence of Seth P. Staples to Thomas Day” 4 (unpublished paper, 1996) (Yale Law Libr. RB classmark YL 31 St2 no.3). Thompson transcribes the Staples/Day correspondence, id. at 9–37, from the manuscript originals in Sterling M&A, Day Family Papers, MS 175, boxes 1, 4, 6, 10.
(140) . “Manuscript Notes of Lectures by Tapping Reeve at the Litchfield Law School” (Yale Law Libr. RB Room shelfmark MssB +L71 1798). Staples' source for this copy may have been the notes of Thomas Day, Staples' college classmate, who attended Litchfield during the 1797–98 year, and with whom Staples was in close contact, see supra note 139. Since Day's notebooks are not known to have survived, the comparison cannot be made. Day became the Connecticut law reporter; see his Reports of Cases Argued and Determined in the Supreme Court of Errors of the State of Connecticut (1814–43) (14 vols.). Day also produced digests to the Connecticut reports, noted in 2 Morris L. Cohen, Bibliography of Early American Law, entries 5475–77 (1998).
(141) . E.g., McKenna, Litchfield, supra note 27, at 168; Hicks II:3, 2001 ed. at 53 (but see id. at 5, 2001 ed. at 55, noting the possibility that Staples could have copied a notebook rather than attend the course, because Staples' notebook is not a complete Litchfield course and because it includes Staples' notes on other reading).
(142) . A manuscript account book from the firm of Staples and Hitchcock for the years 1811–34, hinting at some of the work of the firm, survives (Yale Law Libr. RB shelfmark MssB St27).
(143) . Dexter, Yale Biographies, supra note 134, at 257–59; Hicks I:15–16.
(144) . Hicks refers to Staples' involvement but misrenders Goodyear as Goodrich. Hicks I:18. On Goodyear see 7 DAB 413–15; see generally Richard Korman, The Goodyear Story: An Inventor's Obsession and the Struggle for a Rubber Monopoly (2002); on Goodyear's patent and the patent litigation see id. at 82–144 (discussing only the appearance of Daniel Webster, not Staples, on behalf of Goodyear). For accounts of the litigation mentioning Staples, see P. W. Barker, Charles Goodyear: Connecticut Yankee and Rubber Pioneer—A Biography 19 (1940); Ralph F. Wolf, India Rubber Man: The Story of Charles Goodyear 172 (1939).
(145) . Staples was counsel in habeas corpus proceedings. See The African Captives: Trial of the Prisoners of the Amistad on the Writ of Habeas Corpus, before the Circuit Court of the United States for the District of Connecticut, at Hartford (New York 1839) (Yale Law Libr. RB shelfmark Trials B Am57). Staples moved for the writ of habeas corpus on September 18, 1839. Id. at 1, 20–29, 34–37, 38. Staples' role is discussed in Howard Jones, Mutiny on the Amistad: The Saga of a Slave Revolt and Its Impact on American Abolition, Law, and Diplomacy 71–76 (1987);Christopher Martin, The Amistad Affair 105–6 (1970).
(146) . U.S. v. Libellants and Claimants of the Schooner Amistad, 40 U.S. 518 (1841).
(147) . Hicks I:17. Until 1842, the mayor sat ex officio as a judge of the city court. See Rollin G. Osterweis, Three Centuries of New Haven 165 (1953); Charles H. Levermore, The Republic of New Haven: A History of Municipal Evolution 165 (1886).
(148) . DAB 26–27, Hicks I:36.
(149) . Daggett's political writings are the subject of Michael T. Sansbury, The Political Pedagogy of David Daggett (1999) (unpublished paper, Yale Law Libr. RB shelfmark YL 19 H629 no. 5).
(150) . President Ezra Stiles of Yale was planning for this professorship in 1777. See 1 Warren, Harvard, supra note 21, at 165–69.
(151) . The event, and its entanglement in national politics, are discussed in Carl R. Fish, The Civil Service and the Patronage 32–58 (1905), cited by Carrington, supra note 82, at 543, n. 110.
(152) . Kelley, supra note 5, at 131.
(153) . Hicks I:40–42; on the Centum Millia Fund, see Peter Dobkin Hall, The Organization of American Culture, 1700–1900, at 163–72 (1982); Kelley, supra note 5, at 152–54.
(154) . See Frederick C. Hicks, William Howard Taft: Yale Professor of Law and New Haven Citizen 29 (1945).
(155) . I reproduce the description in full. Notice that the first paragraph refers to Daggett (but not Hitchcock) as “Professor of Law,” hence invoking his College title.
The Law School is under the instruction of the Hon. David Daggett, a Judge of the Supreme Court in Connecticut, and Professor of Law, and Samuel J. Hitchcock, Esq., attorney and counsellor at law.
The students are required to peruse the most important elementary treatises, and are daily examined on the author they are reading, and receive at the same time explanations and illustrations of the subject they are studying.
A course of lectures is delivered by the Professor of Law, on all the titles and subjects of the Common and Statute Law.
A moot court is holden once a week, or oftener, which employs the students in drawing pleadings and investigating and arguing questions of law.
The students are also called upon, from time to time, to draw declarations, pleadings, contracts, and other instruments, connected with the practice of law, and to do the most important duties of an attorney's clerk.
They are occasionally required to write disquisitions on some topic of law, and collect the authorities to support their opinions.
The students are furnished with the use of the elementary books, and have access, at all times, to the college libraries, and to a law library, comprising very important works both ancient and modern.
The terms for tuition and use of library are $75 per annum. The course of study occupies two years, allowing eight weeks vacation each year. Students are however received for a shorter period.
The Professor of Law will also, for the present, occasionally deliver lectures to the Senior class in College, until arrangements are made for a systematic course to be permanently continued.
(156) . Kelley, supra note 5, 144–46.
(158) . Kelley, supra note 5, at 131–32; Gerard N. Burrow, A History of Yale's School of Medicine: Passing Torches to Others 18ff (2002).
(159) . Hicks I:24.
(160) . This step was taken at Hitchcock's urging. Writing in 1842, he told the Yale authorities that Yale was losing students to Harvard because Harvard awarded degrees to its graduates and Yale did not. Hitchcock to President and Fellows of Yale College, Aug. 6, 1842, reproduced in Hicks I:24–25.
(161) . Yale Law School held a fiftieth anniversary celebration in 1874, with Chief Justice Waite and other dignitaries in attendance. See Hicks III:16–17, 2001 ed. at 132–33. Later in the century, the School's annual catalogue repeated this claim in its title, e.g., Yale Law School: Sixty-Fourth Year 1887–88—Annual Calendar and Alumni Record 1824–1886 (New Haven, 1887). The claim continues to be made, e.g., Yale Law School 2002–2003, at 20 (Bulletin of Yale University, series 98, No. 8, Aug. 10, 2002); Kelley, supra note 5, at 164n.
(162) . Catalogue of the Officers and Students in Yale College 5 (Nov. 1824).
(163) . Id.
(164) . Michael T. Sansbury (YLS 2001), “When Was Yale Law School Really Founded?” 5–8 (unpublished paper, May 17, 2001) (Yale Law Libr. RB classmark YL H629 no.7).
(166) . Hicks at I:14–15.
(168) . Because of his judicial duties in Washington and on circuit, Story insisted on having a colleague in residence to perform “the drill duty” and to look after the students. Newmyer, supra note 50, at 241, quoting correspondence from Story dated 1828 or 1829.
(170) . Emphasized in Carrington, supra note 82.
(172) . I have discussed the circumstances and content of Kent's first lectures in Langbein, Kent, supra note 12, at 558–60. On Wilson's lectures at what became the University of Pennsylvania, see Carrington, supra note 82, at 546–50. Wilson's text has been published: The Works of James Wilson (R. McCloskey ed., 1967) (2 vols.).
(173) . Yale College (then the largest in the nation) had a student body of about 275 in 1817. Kelley, supra note 5, at 142. The finances were tuition-driven. The endowment as of 1817 (excluding land) stood at $54,440. Tuition was $33 per year. Id. at 143–44. Investment losses in the collapse of a bank in 1825 cost the College $21,000 of its endowment. Id. at 150. Between 1701 and 1830, Yale received a total of about $145,000 in gifts and grants. Id. at 151.