Legal Professionalization and the American Revolution

nypl.digitalcollections.1d31b7c0-ed26-0132-b11b-58d385a7b928.012.wJohn Adams thought that James Otis set the whole American Revolution in motion in 1761. Otis’ argument against writs of assistance, in a legal case that year, Adams wrote, “was the first scene of the first Act of opposition to the Arbitrary claims of Great Britain. Then and there the Child Independence was born.”[1] Of course, Adams also though that July 2nd would be the most famous date in history. So forgive me for at least questioning Adams’ view that the “Writs of Assistance Case” basically jumpstarted the Revolution. That said, I do think the evidence base for the “Writs of Assistance Case” suggests that it was a major turning point in the development of the colonial legal profession. Picking up on themes in yesterday’s guest post by Craig Hanlon, the case may help make sense of the connections between legal professionalization and the American Revolution.

The case came before the Suffolk Superior Court in Massachusetts in 1761. The existing writs of assistance had expired at the death of King George II. Boston merchants opposed the plan to issue new writs and hired Otis to represent them.[2] To oversimplify, writs of assistance were general search warrants granted to crown officials. In colonial America, they were used most frequently to empower customs officials to conduct searches and seizures without a specific warrant. This broad grant of power also allowed customs agents to deputize local officials to help carry out the searches—hence writ of assistance. Otis alleged that under these writs, even the “menial servants” of customs officials “are allowed to lord it over us.” To Otis, writs of assistance were “the zenith of arbitrary power.” And so he pledged that “I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand, and villainy on the other, as this writ of assistance is.”[3]

What we know about this famous case comes from John Adams’ “Abstract of the Argument for and against the Writts of Assistance.” Yet there is no extant copy of this in Adams’ hand. The version in the Adams Papers is actually a composite of five versions, of which “his was [probably] the common parent.”[4] The most complete contemporary manuscript copy is in a commonplace book—which was recently digitized by the New York Public Library—kept by Joseph Hawley, an attorney from Northampton, Massachusetts.

Pic 2

“Substance of Mr. Gridley’s Argument before the Superior Court in favor of Writs of Assistance,” from Joseph Hawley’s Commonplace Book, Joseph Hawley Papers, New York Public Library

Seeing the “Abstract” in the context of Hawley’s commonplace turns our attention away from the influence of Otis’ argument on the coming of the Revolution, and refocuses it on a different problem.[5] Alongside the “Abstract,” Hawley’s commonplace book contains a range of notes on other legal matters. In it, he copied down an “Indictment for a Riot, tarring, feathering, &c., March 1771,” “Rex v Wilson,. Indictment for Murder. Josiah Quincy Jun. for the prisoners his minutes,” and an Explanation of a section of Blackstone’s commentaries on bail in civil actions.

Well into the nineteenth century, law books remained scarce and so lawyers relied on commonplace books to organize their knowledge of legal cases, precedents, and principles.[6] Hawley’s commonplace book was no different. By 1761, Hawley was a fairly experienced professional attorney. That he started to keep this commonplace book suggests—to me, at least—that perhaps he was trying to keep up with changes in the legal profession. We know the Revolution transformed the legal profession, in part because so many lawyers were loyalists who left North America. But Hawley’s commonplace book suggests that the legal profession was changing before the imperial crisis began, and in ways that would shape that crisis and its outcome.

This insight is hardly new. Through the 1750s, the legal profession developed in tandem with increasing imperial control over the colonial judicial system. And as John Murrin famously argued, during the years of the Imperial Crisis “the Massachusetts bar consciously restructured itself along English lines”—it was the paradigmatic example of Anglicization.[7] Paradoxically, then, the colonies revolted when they were at their most English. And even stranger, the most Anglicized group, lawyers—in Massachusetts, Otis, Adams, and Hawley chief among them—led the charge.

Perhaps the Writs of Assistance Case is a missing hinge in Murrin’s story that might help explain the paradox he uncovered. Insofar as Otis’s 1761 argument challenged imperial authority over local law enforcement, it seemed to buck the Anglicization trend. At the same time, Otis had embraced the legal professionalization that accompanied legal Anglicization. His disciples also embraced that professional identity, in part by keeping copies of major court proceedings in commonplace books. The Writs of Assistance case, then, may not have been the driving force behind the Revolution that Adams claimed it was. But it may show lawyers in the process of reimagining their relationship to the Empire before the Imperial Crisis began. If we try to understand the case in terms of Joseph Hawley’s commonplace book, instead of Adams’ memory fifty years after the fact, it then may help clarify how lawyers whose livelihood and identity depended on their connection to the British Empire could lead a revolt against that Empire and then continue the process of professionalizing, and indeed Anglicizing, the bench and bar after the Revolution.

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[1] John Adams to William Tudor, Sr., 29 March 1817, Founders Online, National Archives, available at http://founders.archives.gov/documents/Adams/99-02-02-6735.

[2] On the case, also see Maurice Henry Smith, The Writs of Assistance Case (Berkeley: University of California Press, 1978); John P. Reid, In a Rebellious Spirit: The Argument of Facts, the Liberty Riot, and the Coming of the American Revolution (University Park: Pennsylvania State University Press, 1979), chap. 4.

[3] Adams’ “Abstract of the Argument”: Ca. April 1761, The Adams Papers, Legal Papers of John Adams, vol. 2, Cases 31–62, ed. L. Kinvin Wroth and Hiller B. Zobel. Cambridge, MA: Harvard University Press, 1965, pp. 134–144; available also through Founders Online, National Archives http://founders.archives.gov/documents/Adams/05-02-02-0006-0002-0003.

[4] On the provenance, see ibid, n.1.

[5] Another manuscript copy, which has not survived, was in a commonplace book kepy by Israel Keith. Keith trained to be a lawyer during the 1770s, served in the Continental Army, and then maintained a legal practice until his death in 1819.

[6] On the legal profession and legal education, I have found the following to be particularly helpful: Hugh C. Macgill and R. Kent Newmyer, “Legal Education and Legal Thought, 1790-1920,” and Alfred S. Konefsky, ‘‘The Legal Profession: From the Revolution to the Civil War,’’ both in Michael Grossberg and Christopher Tomlins, The Cambridge History of Law in America (Cambridge University Press, 2008), 36–67 and 68–105; Stephen Botein, “The Legal Profession in Colonial North America,” in Lawyers in Early Modern Europe and America, ed. Wilfrid Prest (New York: Holmes & Meier, 1981), 129–46; Maxwell H Bloomfield, American Lawyers in a Changing Society, 1776-1876 (Cambridge, Mass.: Harvard University Press, 1976); and William Edward Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 (Cambridge, Mass.: Harvard University Press, 1975).

[7] John M. Murrin, “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts,” in Colonial America: Essays in Politics and Social Developments, ed. Stanley N. Katz and John M. Murrin, 3rd ed. (New York: A.A. Knopf, 1983), 540–72, quote on 565; Botein, “Legal Profession.”

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9 comments on “Legal Professionalization and the American Revolution

  1. Daniel Ernst says:

    For another depiction of a famous trial as a window on the professionalization of the bar, see Eben Moglin, “Considering Zenger: Partisan Politics and the Legal Profession in Provincial New York,” 94 Colum. L. Rev. 1495 (1994): http://moglen.law.columbia.edu/publications/zenger.html

  2. Craig Hanlon says:

    Interesting post, Mark. It’s a fascinating point you highlight on the professionalisation of the legal system in the years before and after the American Revolution. Certainly John Adams and others were trying to bring some formality and respectability to the bar in the pre-revolutionary years with measures such as the establishment of the Suffolk County bar association and the imposition of minimum standards for training and experience before new attorneys were admitted to practice. Your remarks on commonplace books was also interesting and certainly appears to be an underused tool in understanding this important group of people and the changes the legal profession was undergoing in colonial America.

    • Thanks for the comments Craig, and for your post yesterday which prompted me to write about the commonplace book. Hopefully your ongoing research will make more sense of some of this.

  3. Thomas T. Hay says:

    I agree about the increasing professionalism of American Lawyers. However speaking at least for Virginia, it does not appear law books were rare. The private collections of John Mercer, Thomas Jefferson, George Wythe, and the public collection of the Council of Virginia makes clear that the major texts and many minor ones were readily available. I think rather than a paradox the legal arguments of the Revolution show how English it was. It’s also interesting to note the Virginia General Court refused to consider the issuance of Writs of Assistance.

    • True (and this is but a side point in Mark’s thought-provoking piece). In the many catalogues of social and personal libraries I’ve looked at, law books were quite common. Pamphlets like Henry Care’s English Liberties, which was a sort-of everyman’s guide to necessary laws and constitutional ideas was also published in numerous editions in the colonies from the 1720s on and appeared in many social libraries. There is a famous quote by Burke from 1775 where he says, “I have been told by an eminent book-seller, that in no branch of his business, after tracts of popular devotion, were so many books as those on the law exported to the plantations.” I don’t know if that was generally true, but they were certainly around and present in advertisements by colonial booksellers. There was a quip, by whom I can’t remember, that all the lawyers were patriots and all the patriots thought they were lawyers.

      For myself, the professionalization of law is one part of a larger story about the emergence of a professional class. Before the 1750s, the clergy were generally the most educated individuals within a community, a fact which buttressed their cultural authority in colonial society (varying among regions, of course). By the 1750s, you had larger numbers of college graduates choosing the new professions over joining the clergy. This created a tension that led to public conflict between younger professionals and more established clergy in places like New York City. Of course, lawyers in New York had been political figures since the 1730s but the increasingly public nature of political/religious conflict at mid-century gave lawyers a public prominence that served as the platform from which they began their efforts at resisting (and leading the resistance of) imperial reform in the 1760s.

      • Thanks for the comment Thomas. As Michael said, in his very helpful comment, this was a side point in service of a broader point, which is that commonplace books were very important tools for lawyers. While most well-trained lawyers read Blackstone and other books during the apprenticeship, or while in proprietary law schools, many did not ever own the books. Rather, they copied down important passages, etc., into commonplace books, which would be their go-to reference in their professional lives. Even lawyers who had a large private collection would rely on commonplace books when they were riding circuit–it was totally impractical to lug an entire library! Thanks again for engaging!

        • Absolutely, Mark. This use of commonplace books is fascinating and not something I’ve seen discussed much. The relative scarcity of law books isn’t really germane to the point because you have the commonplace books (and because most lawyers did their apprenticeship in relatively urban areas). Really interesting piece with a lot to think about on a topic (lawyers and the Revolution) so long ignored that Milton Klein complained about it over 30 years ago.

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