Tracing legal education 19th century style

A 19th century lawyer’s education

Sherry Morgan poses a tricky question:

How does one trace a lawyer’s education who was practicing law in 1850 in Louisiana, claims to have been born in Alabama with parents from North & South Carolina? He came to Louisiana as an adult, but was still living with his family.

The reason why the question is tricky is because the answer may change depending on when and where this lawyer was first licensed to practice law and on when and where in Louisiana he was licensed.

First off, remember that a formal legal education in the sense of a three-year post-collegiate law school curriculum is a real newcomer to the American legal scene. While it’s true that there were law schools here very early — the College of William and Mary in Virginia first created a professorship in law in 17801 — in general only the wealthy could obtain formal training for their sons in the law since it often meant sending them to England to the Inns of Court.2

For those trained in America, a legal education really meant a period of apprenticeship or self-study. Even as late as 1900, only half of all American lawyers had ever attended any formal law school — most weren’t even college graduates and only seven states required so much as a high school diploma.3

Exactly what a young man — and with only one known exception, Margaret Brent of Maryland,4 they were all young men who practiced law in early times — had to show to be licensed or admitted to practice law differed from state to state.

Between Louisiana statehood in 1812 and 1840, the requirements for admission to practice in Louisiana were “a good name; an apprenticeship in a law office, a college diploma, or a license from another state; fluency in English; and a satisfactory performance on an oral examination.”5

Note the kicker here: the chance that he may have been licensed in another state before he was licensed in Louisiana. If he had first been licensed in his native state of Alabama, what he might have had to show the Louisiana authorities would have been less than if he was first licensed in Louisiana.

In Alabama, anyone of good character could be admitted to practice law if he could pass an examination before the Alabama Supreme Court; he could practice before the lower courts if two circuit judges agreed he could.6 Not until 1852 was there a required examination of specific subjects and even that law didn’t require any specific formal education.7

So if your lawyer was first admitted in Alabama, all that may exist there is a record of his having taken any examination that was required and/or the issuance of a license. You could try the Alabama Department of Archives & History as a first step. Among its holdings is the Diplomas and certificates collection, 1801-1954, which contains “licenses to practice medicine and law.” (For those with earlier lawyer-ancestors, check out the Register of appointments, 1805-1819, which includes “lists of attorneys and counsellors at law licensed in the Ala. Territory”.) And, of course, records of the Alabama Supreme Court and of the circuit courts should be reviewed as well for any order admitting him to practice there.

And if your lawyer was first admitted in Alabama, and then was admitted in Louisiana before 1840, he may not have had to do much more in Louisiana than bring a copy of his Alabama license into court since “(t)here were few rules to control admission to the bar, and the question of what constituted adequate training was left open.”8

So you really want to hope that he was first licensed in Louisiana after 1840. That’s because of a major change in attorney licensing that year:

On November 24, 1840, the Louisiana Supreme Court promulgated a rule establishing a required course of study for candidates seeking admission to the bar. The rule required candidates to be knowledgeable of Louisiana codal, statutory and case law, as well as civilian authorities, such as Jean Domat, Robert Pothier, and the Institutes of Justinian. The rule also stated that prospective lawyers should be “well read” in the following common law treatises: Sir William Blackstone, Commentaries on the Laws of England (Oxford, 1765-1769), James Kent, Commentaries on American Law (Philadelphia, 1826), Joseph Chitty, A Practical Treatise on Bills of Exchange, Checks on Banks, Promissory Notes, Bankers Cash Notes and Bank Notes, first American ed. (Philadelphia, 1809), Sir John Bayley, Summary of the Law of Bills of Exchange, Cash Bills and Promissory Notes (London, 1789), Thomas Starkie, A Practical Treatise on the Law of Evidence and Digest in Civil and Criminal Proceedings (London, 1824), Samuel March Philipps, A Treatise of the Law of Evidence (London, 1814), and William Oldnall Russell, A Treatise on Crimes and Misdemeanors (London 1819).9

The rule of 1840 took effect at once and that basic course of study stayed the rule in Louisiana with only a few changes right into the 20th century.10 And now would-be lawyers had more they had to prove — or at least more the courts of the day wanted to know about.

In both cases — pre-1840 and post-1840 — what you want to start with are the records of the Louisiana Supreme Court. The Court’s Archives were transferred to the Earl K. Long Library of the University of New Orleans by court order in 1976.11 At a minimum, no matter when he was admitted or where he was first licensed, there ought to be some reference to him becoming a member of the Louisiana bar in the Minute Books of the Supreme Court of Louisiana, which are held in Series III, Minute Books, 1813-1922. And, with some luck, you’ll find him in Series IV, Miscellaneous Records, 1817-1894, Box 314, Administrative Records, 1817-1846, Documents relating to admissions to the Louisiana Bar.

One possible hitch here: many of the records for the western appellate circuit — outside of New Orleans — were lost12 and so if he was admitted there, you may be out of luck in terms of his admission — but he still should show up in the court records after being admitted.

Let us know what you find!


SOURCES

  1. Davison M. Douglass, “Jefferson’s Vision Fulfilled,” in America’s First Law School, About William & Mary Law School (http://law.wm.edu : accessed 22 May 2012).
  2. Wikipedia (http://www.wikipedia.com), “Legal education in the United States,” rev. 14 May 2012.
  3. Brian J. Moline, “Early American Legal Education,” 42 Washburn Law Journal 775-802 (2003).
  4. See “Margaret Brent (ca. 1601-ca. 1671),” Maryland State Archives (http://www.msa.md.gov : accessed 22 May 2012). More will be written about Margaret in the future.
  5. Warren M. Billings, “A Course of Legal Studies: Books That Shaped Louisiana Law,” in Warren M. Billings and Mark F. Fernandez, A Law Unto Itself?: Essays in the New Louisiana Legal History (Baton Rouge : Louisiana State Univ. Press, 2001), 30.
  6. Acts of Alabama 1819, 68; Acts of Alabama 1821, June Session, 31.
  7. Code of Alabama, 1852, Section 729.
  8. Elizabeth Gaspard, “The Rise of the Louisiana Bar : The Early Period, 1813-1839,” Louisiana History: The Journal of the Louisiana Historical Association, 28: (Spring, 1987), 183-197.
  9. Ronald Fonseca, “Blackstone’s Commentaries: Foothold or Footnote in Louisiana’s Antebellum Legal History,” University of New Orleans Theses and Dissertations, Paper 514 (2007); online version, ScholarWorks@UNO (http://scholarworks.uno.edu : accessed 22 May 2012).
  10. Billings, “A Course of Legal Studies: Books That Shaped Louisiana Law,” 38.
  11. “Historical Note,” Supreme Court of Louisiana Historical Archives, (Mss 106), Inventory, May 2005 (http://http://library.uno.edu/ : accessed 22 May 2012).
  12. Billings, “A Course of Legal Studies: Books That Shaped Louisiana Law,” 31 n.11.
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4 Responses to Tracing legal education 19th century style

  1. Barbara Lass Grempler says:

    Judy, You have become my morning reading with my second cup of coffee each day. A great start to the day. I’m just wondering, with all the blog law reading, will your faithful readers receive an “official” LegalGeanoligist law certificate? :>)

  2. Stephanie Wells says:

    Love your blog, Judy! I’m learning so much. Can you give a similar explanation for a lawyer practicing in Virginia in 1850?

    • Judy G. Russell says:

      Thanks for the kind words, Stephanie! I can certainly add an 1850 Virginia lawyer to the queue for an answer in the future. It always helps to have specifics if you have them (feel free to email ‘em or hit the contact link above with info).

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