Academic journal article Northwestern University Law Review

A Tale of Two Lawyers

Academic journal article Northwestern University Law Review

A Tale of Two Lawyers

Article excerpt

Paul D. Carrington*

The careers of two 19th century American lawyers put in bold relief the constructive role that American lawyers are called to play in our public life. The role was shaped in important respects by deliberate men who had led a revolution. It was already in the minds of Thomas Jefferson and George Wythe l at the time they drafted our Declaration of Independence, and it was widely shared among members of that generation who survived the American War for Independence.2

Contrary to a common belief,3 their concept of an American legal profession was not derived from English sources. American revolutionaries, even many of the conservative followers of Alexander Hamilton, did not greatly admire the English bar and they reviled the feudal English society of which that profession was a manifestation? They recognized that the stability of English society in their day was provided by an aristocracy who, through the political power of the House of Lords, protected their own wealth and status, and by doing so, forestalled the more violent disorders that might otherwise have held sway in parliamentary politics and in the streets of London. Law and the legal profession played no significant role in English politics.

American revolutionaries were keenly aware that few institutions in their own small colonial societies were able to perform the stabilizing role of the English aristocracy.5 Those who established the thirteen miniature republics were on this account almost universally pessimistic about the prospect that their institutions of self-government could be maintained.6 They were all well informed about the failure of earlier republics in Greece, in early Rome, and in medieval Florence7 and Venice. Montesquieu, the most widely read political theorist of the time,8 foretold the destiny of republics to collapse through a process beginning with factionalism that degenerates into disorder, resulting in chaos always resolved by despots. The classics, which all educated Americans of that time had read, taught that even if "every Athenian was a Socrates, every Athenian assembly would still have been a mob."9 Montesquieu had asserted, and many early Americans believed, that the only chance of keeping a republic lay in nurturing a popular belief in law. Only a people who loved their laws, it was held, could hope to continue to govern themselves.10

In this belief, state constitutions were ratified in each of the thirteen states that envisioned with varying degrees of clarity the use of law to cabin legislative misadventures-misadventures that would result in the factionalism and ultimately in the disorder, chaos, and despotism they feared. The federal Constitution of 1787 was an expression of the same fear. The one purpose shared by all who drafted and signed that instrument was to establish a federation capable of preventing the dreaded spread of disorder across the continent. In the minds of many who framed and ratified it, the most essential provision of that Constitution may have been the one obligating the federal government to guarantee to each state a republican form of government.ll

The founders thus created legal institutions having important political responsibilities. They introduced a large element of law into American politics. And it followed that they had introduced a large element of politics into American law. The legal profession, of which the courts are a part, was assigned a major political role-a role quite unknown to the English bar.

Tocqueville would soon recognize American lawyers' political role as analogous to the role of European aristocracies.l2 He did not, as some believe, think of American lawyers he met as persons of elevated social status.13 Rather, in speaking of the first members of our profession as aristocrats, he was observing that the American legal profession is a source of the political stability long provided in Europe by the institutions of feudalism. …

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