The Lawyers Talk History

Abiographer who has brought lucidity and insight to her biographies of three great lawyers,Oliver Wendell Holmes, John Adams,and the Queen’s Advocate, Sir Edward Coke, CATHERINE DRINKER BOWEN is here concerned with the courage which is occasionally called out of young lawyers and of the permanent record which that courage may leave in the long run of history,

THE ATLANTIC

BY CATHERINE DRINKER BOWEN

BIOGRAPHERS are used to good company, I have been privileged to spend days and years in close communication with the brilliant and tough-fibered of the legal teaching profession. The subjects of my last three biographies were teachers, after their several fashions. Justice Holmes and Sir Edward Coke taught in law school, the first at Harvard, the other at the London Inns of Court. John Adams would surely have taught in law school had any such institution existed in his day. As it was, his teaching took another direction. By word of mouth, by letters to the newspapers, by official instructions to representatives of the legislature, and finally by his book, Defence of the Constitutions of the United States of America, Adams explained to his generation the kind of government, local and national, which they could expect to build, and the kind of government he thought they deserved. His first such effort, published in the Boston Gazette when he was only twenty-nine, made a stir in the province, was carried to London and reprinted there. “A Dissertation on the Canon and Feudal Law,” it was called. “Government,” wrote Adams, “is a plain, simple, intelligible thing, founded in nature and reason, and quite comprehensible by common sense.”

It is my experience (and hardly original) that clever men who can reduce complex problems to simplicity are apt to be very well educated. Often enough, their so-called common sense derives not from the rough-and-tumble of this world but from pure book learning, from scholarship, from long and solitary study. The studious man, who by some accident of the times finds himself in public life, has a range of reference wider than his fellows’. He can relate idea to idea and thereby isolate or combine the factors that will make up a pattern comprehensible to ordinary men. In short, he is a good teacher. And by this token, John Adams, from his college days, had read widely in the history of governments, ancient and modern. He compared them, assessed them in relation to the world he saw around him. His diary for the 1760s has a frequent and a striking entry: “At home with my family, thinking. . . . At home, thinking, reading, searching. . . .”

No wonder Adams was ready, when the time came. Yet John Adams was only one of many patriot lawyers. It is no accident that in America, as in the England of Edward Coke’s day, the onset of successful revolution coincided with the emergence of an educated bar. We know the famous names: Jefferson, Madison, Hamilton, Dickinson, James Wilson of Philadelphia — lawyers who wrote our state papers and our Constitution. It is not these men, however, that I am concerned with at the moment, but an earlier group in Massachusetts — local attorneys of the Boston bar who never reached the great Revolutionary forum in Philadelphia, yet who served their country valiantly and artfully in their professions: Jeremiah Gridley, James Otis, Oxenbridge Thacher, Josiah Quincy, Jr. — their names are all but forgotten. I take this occasion to celebrate them, as trial lawyers, business lawyers who made money and brought clients to their offices, as champions of the rights of their colony against an absentee government. And above all, as inveterate and natural-born teachers of legal history.

LET me give you a scene, after the fashion of biographers:

It is a winter’s morning of the year 1761, in the old Council Chamber of the Boston Town-House. An important hearing is scheduled. On order from the Lords of Trade in England, the customhouse at nearby Salem has petitioned the Superior Court for writs of assistance to discover contraband coming in by sea. Dwellings are to be searched, as well as ships and warehouses. From Salem, Plymouth, Boston, howls of anguish have gone up; merchants cry they will be ruined. Four judges, wigged, powdered, and wearing their scarlet, sit with the royal governor, Francis Bernard, to hear the petition of the merchants against the Messrs. Paxton and Cockle of the Salem customhouse. Actually, there is no necessity for the red robes, this being a civil case, but Governor Bernard desired a good show, to impress the province. Spectators fill the room — merchants, citizens, and every barrister of the eastern counties, which means not more than ten or twelve. Below the judges, three lawyers wait, ready with their briefs: Gridley, Otis, Thacher. Somewhere in the audience a youth of seventeen, a Harvard sophomore, is ready with pen and paper to report the case, though he has no official position.

Gridley will argue for the customhouse and the crown, James Otis and Oxenbridge Thacher for the merchants, and thereby, in the eyes of the audience, for the province of Massachusetts. Teacher is pitted against pupils today; both Otis and Thacher read law in Gridley’s office. Jeremiah Gridley, bluff, scholarly, in his sixtieth year, is known in Massachusetts as the “Father of the Boston Bar”; he has trained a dozen young attorneys. Otis, a strong, thickset man of thirty-six, vehement in speech and movement, magnetic, wildly erratic at times in behavior, is much respected in the province. “An honest man and a thorough-taught lawyer,”John Adams called him. When the case had first come up, some months ago, Otis had been Advocate General of Admiralty, a lucrative crown post. The customs men had called on him to defend their position, but he resigned in order to argue for the merchants. His associate today, Oxenbridge Thacher, is a man of forty-one, cool and quiet, with easy manners, a slow musical voice, an ailing body, and a quick wit which strikes when the adversary least expects it. Thacher, people say, is like Dan in the Bible, whom his father described as “a serpent in the way, that biteth the horse’s heels so that the rider falleth backward.”

Gridley rises to open for the crown. As always he is lucid, reasonable, well bolstered by legal precedent. “If it is law in England, it is law here,” he says. Oxenbridge Thacher, when his turn comes, argues that writs of assistance are but temporary warrants, special warrants that must be renewed for each search. James Otis is the last to rise. The audience stirs expectantly. Otis is on his feet for five hours. A “flame of fire,” wrote John Adams afterward. Otis cites Sir Edward Coke on Bonham’s Case, he cites Magna Carta. An Englishman’s house is his castle, it cannot be entered without a special warrant, and then only for felonies. “An act against the constitution is void!” Otis shouts. “An act against natural equity is void !”

Old Jeremiah Gridley was always irritated when his law students took flight into paragraphs about the laws of nature, leges terrae, and the barons at Runnymede. On one such occasion he had rebuked the offender openly in court. “Quoting history is not speaking like a lawyer,” he said. Yet here was James Otis, spouting off into history and obviously impressing — if not the governor and the judges — at least the audience of sixtythree rich merchants whose fortunes depended on the outcome. Otis would lose this case, and Jeremiah Gridley knew it.

Otis did lose. Yet Gridley, when the day was over, experienced great pride. Not for himself, though technically he had won: the writs of assistance remained valid, customs officers could enter dwellings and warehouses to search for contraband. But in the popular mind the crown side had lost ground, and Gridley was aware of it. In the long run it would be James Otis’ arguments that would bear weight in the colonies. Gridley’s pride was all for his pupils. “I raised up two young eagles,” he said. “They pecked out both my eyes.”

Even a layman knows that poetic generalities, drawn from history, do not win lawsuits. Jeremiah Gridley was right, “Quoting history is not speaking like a lawyer.” More than a century later, Frederick Maitland confessed that after a lifetime of teaching, he had come to the regretful conclusion that a lawyer does not need to know history in order to win cases.

But winning cases is one thing, and winning popular causes is another. In revolutionary times, a law court is apt to be the great forum. Already, in 1761, lawyers like James Otis knew that we must one day break from the English government — but not from the fundamental principles of English law. And these principles must be taught to the people, they must be disseminated somehow. Otis, Gridley, Thacher, Adams (and that young Harvard student who sat in court with pen and paper) all showed a deep pride in their common-law inheritance. It was their best birthright as Englishmen, they said. They could not know that, after 1787, the states were to repudiate the common law simply because it was English, and still later to adapt it to their needs. Court records of the 1760s show some very shaky so-called “constitutional” arguments, interpreting ancient statutes in the light of present expediency. Reading them, one is reminded of Sir Edward Coke, whose enemies accused him of “inventing” Magna Carta.

But can we say that Lord Coke did not make good use of his invention, or that we in America did not profit by it? I think, too, of Coke’s colleagues, the lawyers in Parliament, who contrived to go down river from Westminster to the Tower of London and find ancient precedents to confound the policies of James I. Almost beside himself, the King declared at last that “if he would hunt what other kings have done, he might find somewhat for himself, although there be antiquaries and nimble wits in the House of Commons.” In this early battle at Westminster Hall, “historical research,” it has been said, “appeared as the guardian of national liberties.”

Our Massachusetts lawyers, then, were in a distinguished line of descent when they indulged in this “Anglo-American habit of going forward while facing backward.” The phrase is not mine but Professor Leonard Levy’s, from his brilliant book The Legacy of Suppression. I myself would put it more favorably and say that our Massachusetts lawyers of the 1760s were riding out the storm, not by cutting loose, but by paying out more anchor chain. Call it a need for justification, call it a sense of continuity, a groping for order, or a tactic of expediency — in the prerevolutionary courts of America, in local legislative speeches and papers, it was much in evidence. A new world was in the making, and a new society. But its laws were not to be fashioned newly, out of empty air and environment. Voltaire once told his countrymen, “If you do not like your laws, destroy them and make new ones” — a directive that is deeply repugnant to the Anglo-American tradition, which says that law is not made, it must grow from the root.

I cannot but think it fortunate that our Revolution, long before the fighting began at Lexington, was engineered by men who knew the law, men whose minds moved not in terms of violence and quick results but in terms of the law and the courts and the reasoned, disciplined action that lies behind the law and the courts. And not only in Massachusetts, but in New York, Virginia, Pennsylvania, Carolina. In our own time we have seen what happens to revolutions which move too fast. It was John Adams who said, “I adore gradual abolition.”

AND now — the boy of seventeen who sat taking notes in the courtroom while James Otis was quoting history. The youth’s name was Josiah Quincy, Jr., and he was already in love with the law. He continued to write court reports — after his own delightful and highly personal fashion — for the ensuing eleven years. Young Quincy belonged to the well-known Massachusetts family which spells its name with a c and pronounces it like the s in the word for a bad sore throat. After the Writs of Assistance trial, and after his graduation from Harvard, Quincy read law with Oxenbridge Thacher. In 1770 he was co-counsel, with John Adams, in defending the British soldiers accused of murder after the so-called Boston Massacre. Captain Preston and six soldiers were acquitted; two of their comrades pleaded guilty to a lesser charge and got off with light sentences — an event in law of which America can be very proud, undertaken as it was in a rabid political atmosphere which favored any kind of trial but a fair one.

An ardent, intense young man with a gift for oratory and a passion for reading books, Quincy went after business as a bird dog goes after game. He is said to have been the first lawyer in Boston to hang out a shingle. All of these patriot lawyers, incidentally, were avid for business; Quincy found the competition keen. John Adams, traveling the northern circuit on horseback with Josiah and his older brother, Sam Quincy, in the summer of 1774, wrote home from a house where he and Samuel had lodged overnight. It was raining, but young Josiah would not stop. “Always impetuous and vehement,” wrote Adams, “Josiah Quincy pushed forward, I suppose that he might get upon the fishing ground before his brother Sam and me.”

Among the members of the Liberty Party, Josiah Quincy acquired extraordinary prestige while still in his twenties. He wrote fiery, flowery patriotic pieces for the newspapers signed “Hyperion,” “An Independent,” or even, “An Old Man.” In his law reports he hammered away at the Tory judges, in footnotes. “Wilkes Quincy,” the Chief Justice called him in derision, after the parliamentarian who in London was currently notorious. In 1774, when he was thirty, Josiah Quincy sailed for London, to talk if possible with the Lords of Trade, try to interpret America, and make Britain see what she was doing to destroy her colonies. Frail, tubercular, and immensely attractive, young Quincy walked the London streets, desperate with the futility of his mission. The British, he wrote home, could not believe the Colonies were in earnest. And concerning the Continental Congress, “People here,”said Quincy, “have no idea that a body of men can be virtuous.” In Parliament, Lord Hillsborough remarked that there were at the moment two persons at large in London who should be in Newgate Prison or on Tyburn gallows. One was Josiah Quincy; the other, Benjamin Franklin.

The trip home was rough and stormy, Josiah grew daily weaker and more ill. On the twenty-sixth of April, 1775, just a week after the battle of Lexington, as his ship was nearing Boston Harbor and had sighted Gloucester Light, Josiah Quincy died. In his will he left to his only son, Josiah III. a considerable sum of money, and — says the document — “when he shall arrive at the age of fifteen years, Algernon Sidney’s works, John Locke’s works, Lord Bacon’s works, Gordon’s Tacitus, and Cato’s Letters. May the spirit of liberty rest upon him!” Quincy added.

Perhaps it was naïve. Yet it was not ineffectual; Josiah III grew up to be, though not a lawyer, president of Harvard and mayor of Boston. Naïve, too, that in the elder Quincy’s copy of Blackstone’s Commentaries, he wrote, after the name of the author on the title page, “who voted against the bill to repeal the American stamp-act.” Like John Adams, like Holmes and Sir Edward Coke, Josiah Quincy had a romantic pride not only in his country but in the law. “My profession, the noblest on earth,” he once wrote to Samuel Adams.

Quincy, Otis, Thacher, John Adams, Robert Treat Paine — in Suffolk and Middlesex counties these men practiced their profession as revolution approached. But Jeremiah Gridley, Father of the Boston Bar, apparently worried over his young colleagues. Perhaps they could do with a little more culture, more proficiency in the use of the English language, a wider reading in the classics.

Gridley formed a law club, which met regularly, in the 1760s. It was called “Sodalitas, A Club of Friends.” “It should be part of our plan,” said Gridley at the first meeting, “to improve ourselves by writing, by reading carefully the best writers, and by using ourselves to writing.”

I like that eighteenth-century phrase, “using ourselves to writing,” Young John Adams, a member, quoted it in his diary. “It should be part of our plan also,” Gridley said, “to publish pieces now and then. Let us form our style upon the ancients and the best authors. I hope and expect to see at the bar,” Gridley finished, “in consequence of this Sodality, a purity, and elegance, and a spirit surpassing anything that ever appeared in America.”

Members of the Sodality worked hard over their papers. And in one case, at least, what they wrote did not die with them. Gridley told John Adams, “Pursue the study of law, young man, rather than the gain of it. Make money enough to keep out of the briars, but give your main attention to study. That is rule number one.” Years later, Adams said the advice had made so deep an impression that no lawyer ever did so much business, in seventeen years of practice, for so little profit. But no matter how Adams emerged financially, one cannot wish that his career had taken another direction. In the easy phrase of today, John Adams did all right.

To the greatest lawyers — to those whose names are remembered — the law was inseparable from history, no matter who won the cases. And the influence of a teacher, for better or for worse, is no less today than it was in the 1760s. Ours is an age of specialization, with every branch of learning, including the law, divided into tight small compartments. It is difficult therefore to retain the whole view of a whole profession that makes for pride and excitement. It seems to me that the ability to retain belief in one’s work — which means in what one is doing day by day — is surely no small part of heroism. When Lord Coke was old, he wrote, in the preface to one of his books, “I do owe more to my profession than all my faithful labors can satisfy.”