III. ANECDOTES OF THE HARVARD LAW SCHOOL AND OF ITS FAMOUS
TRIUMVIRATE.
I have on my shelves a beautiful book. "The Centennial History of The
Harvard Law School," 1817-1917, published by The Harvard Law School
Association, 1918. This work, of about four hundred pages, has been
written and compiled by the Faculty, with the assistance of graduates.
It is admirably printed on excellent paper and liberally illustrated.
The whole story of the great School is spread before the reader: its
modest beginning; its Golden Age of Story and Greenleaf; the sedate and
conservative era of the Triumvirate, Parker, Parsons and Washburn, in
which my own lot fell; and then Langdell, the apostle of a new idea, and
his many brilliant and interesting followers. The centre of gravity has
been shifted from the text-book to the case and this is philosophical,
for evidently the cases are the original evidences of the law. But the
idea of taking up what Thackeray calls "the vast legend of the law" as a
direct subject of study was so revolutionary that it won its way very
slowly. I quote from the "Centennial History" a spirited sketch of
Professor Langdell's opening, and of the early history of the new
system:
"The day came for the first trial of the new method of study and
teaching. The class gathered in the old amphitheater of Dane Hall--the
one lecture room of the School--and opened their strange new pamphlets,
reports bereft of their only useful part, the head-notes! The lecturer
opened his.
"'Mr. Fox, will you state the facts in the case of Payne v. Cave?'
"Mr. Fox did his best with the facts of the case.
"'Mr. Rawle, will you give the plaintiff's argument?'
"Mr. Rawle gave what he could of the plaintiff's argument.
"'Mr. Adams, do you agree with that?'
"And the case-system of teaching law had begun.... Consider the man's
courage.... Langdell was experimenting in darkness absolute save for his
own mental illumination. He had no prestige, no assistants, no
precedents, the slenderest of apparatus, and for the most part an
uncompromising _corpus vile_. He was the David facing a complacent
Goliath of unshaken legal tradition, reinforced by social and literary
prejudice. His attempts were met with the open hostility, if not of the
other instructors, certainly of the bulk of the students. His first
lectures were followed by impromptu indignation meetings. 'What do we
care whether Myers agrees with the case, or what Fessenden thinks of the
dissenting opinion? What we want to know is: "What's the law?"'
"A controversy at once sprang up as to the efficacy of this method of
instruction. To most of the students, as well as to Langdell's
colleagues, it was abomination. The students cut his lectures; only a
few remained. But these few were the seed of the new School. They
included several men who afterward attained national reputation: James
Barr Ames, his greatest pupil and successor; Franklin G. Fessenden,
member of the Superior Court of Massachusetts; Austen G. Fox, a leader
of the New York Bar; Edward Q. Keasbey, of New Jersey; James J. Myers,
Speaker of the Massachusetts House of Representatives and one of the
leaders of the Boston Bar; and Francis Rawle of Philadelphia, a
President of the American Bar Association. Working out his cases with
these enthusiastic young men, patiently and thoroughly as he always
worked, Langdell did nothing to force upon others the acceptance of his
system. In a few years Ames was appointed to the Faculty, and brought
youth, fire, virility into the contest; but for many years the two were
alone in their use of the new method. It was ten years before others
acceded to it."
The fact was that something had to be done. The School was on the down
grade. I state this no more strongly than the History does at pages 21
to 25. This was the natural result, I think, of an extremely inefficient
method of instruction. Nothing could be less effective than a series of
lectures which no one was bound to attend, without recitations or
examinations, so that it was possible for a student to receive his
degree after a year and a half of residence without learning any law.
Such a system might do for very zealous and ambitious students, but not
for a large class. That the School held up its head as long as it did
was due to two things: the _genius loci_, which counted for a good deal,
and the personal influence and example of the professors, who were
superior men.
I write with the reserve proper to one who is considering an educational
policy of which he has had no personal experience, but it seems to me
that, in the last analysis, Professor Langdell's new idea was this: to
rouse, develop, discipline and cultivate the judgment, and so, as far as
possible, to equip each student with that valuable attribute, easily
recognized but hard to define or describe, which is called a legal mind.
It is judgment that does it. A mechanic of good judgment is already half
a lawyer; an attorney of poor judgment will always remain in the
apprentice class.
I am reminded how I first saw Langdell's name. After I left the Law
School I was for a time a member of the New York Bar. As I went upstairs
to my office at No. 16 Wall street, I would see above me, at the top of
the next flight, the sign of a law firm, Pierrepont, Stanley & Langdell.
I knew about Pierrepont, who was a Yale man of the class of 1837, and I
somehow got the idea, perhaps unjust to Mr. Pierrepont, that one of the
junior partners was an erudite man who acted as purveyor of legal ideas
to the head of the firm, somewhat as Sydney Carton did for Mr. Stryver
in "A Tale of Two Cities." The selection of Mr. Langdell as a professor
was due to the sagacity of President Eliot.
An interesting and valuable part of the History is a biographical list
of the ninety-one men who were teachers in the School during the century
covered by the book. One of the names is that of Justice Francis J.
Swayze, of the New Jersey Supreme Court, who began in the Centennial
year, 1917, a course of lectures on Legal Ethics, which he continues.
I now go back to my own time at the Law School. There was a small Jersey
group there. Nehemiah Perry, Henry Young, Job H. Lippincott, Abram Q.
Garretson and John R. Emery were men who, like Othello, "have done the
State some service." When Vice-Chancellor Emery passed away, I became
the only survivor of the little company.
Professor Joel Parker, as I knew him, was a courteous gentleman of the
old school, sixty-nine years of age, _tenax propositi_ public-spirited,
courageous and combative, who had established a high reputation as a
jurist by his opinions as Chief Justice of New Hampshire for fifteen
years. As a conservative Whig he had supported the Compromises of 1850,
but presided over a meeting of the citizens of Cambridge, held June 2,
1856, to denounce the assault on Senator Sumner. The conclusion of his
speech on that occasion showed the mettle of the man. "For myself,
personally, I am perhaps known to most of you as a peaceful citizen,
reasonably conservative, devotedly attached to the Constitution, and
much too far advanced in life for gasconade; but, under present
circumstances, I may be pardoned for saying that some of my father's
blood was shed on Bunker Hill, at the commencement of one revolution,
and that there is a little more of the same sort left, if it shall prove
necessary, for the beginning of another." The Professor had a true
instinct. The attack on Senator Sumner was the first act of civil war;
the John Brown raid the second; the firing on Fort Sumpter the third.
Professor Parker, when Chief Justice of New Hampshire, had a memorable
struggle with Judge Story, who held the United States Circuit Court,
over a question under the Bankrupt Law. The facts are stated on pages
245 and 246 of the History of the Law School. In my time it was thought
that Professor Parker did not like Story, or Story's rather showy law
books. He probably would have agreed with the following remarks on page
12 of the History: "Story was the kindly master who, in his lectures,
smoothed the rough places and was profuse with instruction and help. We
may suppose his lectures, like his books, to have been learned, fluent,
often original and profound, sometimes, however, dodging a difficulty
rather than trying to overcome it." I have heard it said that Story
stands higher as a writer of opinions than as a legal author.
There was in my day a student named Stevenson who was assigned to argue
one side of a Moot Court case before Professor Parker, sitting as Judge.
Stevenson, who knew and well understood the Professor, in the course of
his argument read a few sentences from one of Story's books and then,
pausing and looking at the Judge, said: "May it please your Honor. There
follows this passage about half a page of Latin. I have not read it, but
it looks as though it were on our side."
Professor Parker, during the War for the Union was _pro_ the
administration _saepe_; _pro lege, pro republica semper_. He had, of
course, profound reverence for the writ of habeas corpus. A student once
stated a strong case of treasonable conduct and asked him if he would
not suspend the writ in such a case. "No, sir," said the Professor, "I
would not suspend the writ of habeas corpus, but I would suspend the
corpus."
Professor Theophilus Parsons was a son of the great Chief Justice of
Massachusetts of the same name. He was sixty-six years of age when I
knew him, a man of the world who had touched life at many points, a
voluminous writer of law books and an instructive and entertaining
lecturer. There was a side to his nature which he did not show to his
class. I used to have among my books a small volume of sublimated
Swedenborgian doctrine written by him. It was difficult to associate it
with the genial and jovial man you saw in the lecture room. I have tried
to assimilate this message from the New Jerusalem, but have failed, no
doubt because of some invincible ignorance and innate incapacity of my
own.
Professor Parsons saw something of Europe after graduating from Harvard
in 1815, and I think was at St. Petersburg with William Pinkney, then
American minister, when the Grand-duke Nicholas, who was afterwards
Emperor, was married to a Prussian princess in July, 1817. He described
Mr. Pinkney as coming in from the ceremony in a real or affected huff,
and complaining, as he tore off his gloves, that a beggarly Grand-duke
had obliged him to get up at eight o'clock in the morning. "But, Mr.
Pinkney," said Parsons, "the wedding was not until twelve o'clock."
"True, sir," said Pinkney, who affected to be a man of fashion, "but can
a gentleman dress in less than four hours?"
Professor Parsons wrote an interesting life of his father, who was an
old-fashioned colossus of the common law. Indeed, the Chief Justice took
pretty much all knowledge for his province, and was a classical scholar
and good mathematician. I moved, or was moved, at the early age of three
months, from my birthplace in New Hampshire to the parish of Byfield,
Massachusetts, near Newburyport, and lived there for seven years. The
father of Chief Justice Parsons was a Congregational minister and pastor
of the church in Byfield for more than forty years. When I visit
Byfield, as I love to do, I read upon a tablet on the parsonage lawn
"Birthplace of Theophilus Parsons." The Chief Justice had an
extraordinary knowledge of the early history, laws, institutions,
manners and local usages of the settlers of New England. I had among my
law books one that used to remind me of him. A young lawyer once asked
him what was the best law dictionary. "Kinnicum's is the best," was the
answer. A few days later, the young man said to him, "I have asked
everywhere for 'Kinnicum's Law Dictionary' and cannot find it." The
Chief Justice laughed and said: "Ask for Cunningham's." The book which I
had was Cunningham's "Law Dictionary," in two folio volumes. A similar
incident is told of Judge Story, who was also a 'longshore man, born in
Marblehead, a place which abounded in local peculiarities, as we know
from Whittier's version of "Flud Oireson's Ride."
Judge Story was opening the Circuit Court of the United States at Salem,
and the clerk, as he went over the panel, called "Michael Treffery." No
answer. "Michael Treffery!" No answer. "That is strange," said the
clerk, "I saw the man here a few moments ago." "Let me see the list,"
said the Judge. He glanced at it and said, to the clerk, "Call Michael
Trevay." The clerk: "Michael Trevay." "Present," said a juror. The
clerk: "Why did you not answer?" "You never called my name."
Mr. Parsons, before he became Chief Justice, was sitting in his house at
Newburyport one Sunday morning, when a client and friend, who lived at
Salem, was announced and said: "Mr. Parsons, I beg your pardon for
making a call on Sunday. I would not do it if it were my own matter, but
the case is that I am guardian for some minor children and a matter of
importance to them is coming up in the Probate Court at Salem to-morrow
morning. I have had no opportunity to get advice and so I have taken the
liberty to ask your counsel." "Never practice law on Sunday," said
Parsons. "Why, of course I understand that," said the other, but I
thought that perhaps, under all the circumstances, you might be willing
to aid me." "Never practice law on Sunday," said Parsons. "Good day, Mr.
Parsons, I am sorry to have troubled you." "Stop a minute," said
Parsons, "do you want advice as to the moral aspect of the case or as to
the legal aspect of it?" "Why, as to the legal aspect, of course. I am
satisfied that my position is fair and right. I want to know whether it
will stand law." "Well, now, I will tell you," said Parsons, "I don't
know anything about your case and I don't want to hear anything about
it, but I know you, and if you think that your position is fair and just
you may go ahead on that and I will be responsible for the law."
Someone asked him, when he was Chief Justice, if it were true that he
never lost a case while he was at the Bar. "Yes," said the Chief
Justice, "that is true. I never lost a case, but my clients lost a great
many."
Chief Justice Parsons, because of his preoccupation with his thoughts,
was sometimes careless about his dress. He was a clubable man, to use
Dr. Johnson's phrase, and some of his intimate friends thought that in a
genial hour a useful hint might be given him. So it was arranged that
Mr. Harrison Gray Otis should invite the group to dinner and manage the
matter. Mr. Otis was the one to do it, for he was a man of taste, quite
"the glass of fashion and the mould of form," of great personal elegance
and public distinction, and a graceful entertainer. Accordingly, the
plan was carefully staged, and during the dinner the conversation took a
natural turn toward social customs, usages, modes of dress and the like,
and finally Mr. Otis, in a natural way, but with some distinctness,
said: "For my own part, I always put on a clean shirt every day." The
Chief Justice, who had apparently been giving his undivided attention to
his dinner, here looked up and said: "Why, Otis, what a confoundedly
dirty fellow you must be! I can wear a shirt for a whole week."
Jeremiah Mason told of a professional conference between himself, when
quite a young man, and Mr. Parsons before he became Chief Justice. Among
the elements in the case was a conveyance of parish land by a clergyman,
and its nature and effect were under discussion. Mr. Mason suggested
that it might be held to be a covenant to stand seized. Mr. Parsons
turned to him quickly and said: "Mason, I like that; that is a good idea
of yours; in the relation between a clergyman and his parish there is
some analogy to that between a man and his wife." Mr. Mason, in telling
the story, said: "I didn't know, or had forgotten, that a consideration
of blood or marriage was necessary to support a covenant to stand
seized, but I said nothing, and as soon as I got home I took down my
books and began to study the subject, and found the blood spurting out
between the very lines of the page."
It is grateful to recall the remaining member of the Triumvirate,
Professor Emery Washburn, for he was an enthusiast, an indomitable and
joyous worker at the age of sixty-three. I do not say that Parker and
Parsons were not enthusiasts in their own way. They must have been so to
accomplish what they did, but neither Parker nor Parsons manifested and
imparted the contagious enthusiasm about their daily work which carried
Washburn and the class with him along the arid path of the law of real
estate. He was always busy and always accessible and perhaps, on the
whole, the most useful member of the Triumvirate. He had been a leader
of the very able Bar of Worcester and Governor of the Commonwealth, and
was the author of valuable law books, with which the profession is
familiar. I had a piece of good luck with him in my first and only Moot
Court case. As I stood up to open the case, Professor Washburn, sitting
as judge, said: "Mr. Adams, instead of reading the printed case, suppose
you just state the facts in your own way." It happened that I was about
to ask him to let me do that and was already prepared. So I came off
with flying colors and probably got more credit for readiness than I
deserved.