The Making of a Lawyer, 1878 Version

With law school graduation season winding down and bar review about to start up, it seemed an appropriate time to think a bit about the making of lawyers.

Recently I was sent an unpublished autobiography of Volney Howard, who practiced law out of Virginia beginning in 1878 until near his death in the 1930s. His path to the bar was sufficiently typical of his times – yet sufficiently different from today’s model – that I thought it was worth sharing.

Howard was born in rural southside Virginia in the years before the Civil War.

His early education was, at best, scattered and scanty.

“When the war ended with Gen Rob’t E. Lee’s surrender on April 5, 1865, I was 11 years old. I had never been to school of any sort.

“There were no schools in that part of the country. Virginia never had a public school system until after the war. There were no private schools in that neighborhood, and very few anywhere. However, my mother taught me the ‘A’ ‘B’ ‘C's’ and to read and write a little.

“After the war my father built a little one-room school-house on his little farm of old field pine logs covered with clap boards. He employed a teacher, Miss Mary Jane Hammersley, my mother’s first cousin, and a daughter of Rev. William Hammersley, who conducted a school there for two years. I think, about eight months each of the two years. This school was patronized by such of the neighbors as were able and willing to pay their tuition.

“After that, however, the pressure of hard times made it impossible to keep on with the school and it came to an end.

“Shortly afterwards another teacher, Mr. Mark Browning, undertook, with the help of my father, to establish a school in the same school house, but the patronage was so small that he had to give up the effort, after about two months trial.

“Thus ended my school days. After that, I never saw the inside walls of any school house of any kind or class, as a student. I have never seen the inside of any college or university but once.

“On one occasion, after I had passed the age of forty years, I was in Charlottesville, Va., on business, and l went into one of the class rooms of the University, with a friend, who had been a student there—just to see what such a place looked like.”

Howard’s interest in being a lawyer began as a child with a visit to a local courthouse, where a high profile dispute was underway.

“When I was still a small boy, my father took me with him to Campbell Courthouse where there was a big trial in progress in the Circuit Court, in which a number of educated lawyers were taking part, namely; Judge William Daniel, Daniel Marr, Judge Wood Bouldin, Colonel Stanhope Flournoy and one or more lesser lights. It is very seldom in any period of time, that so many lawyers, of such ability and distinction are engaged in the trial of the same case. Each of the lawyers named was a ‘top-notcher’ of the first class. I had never seen a trial in progress or been in a courthouse before. I had heard of lawyers but I had never seen one before. I was simply captivated—and right there and then was born the determination on my part to become a lawyer myself. This purpose never afterwards left me or weakened. But—-how impossible was this accomplishment? Nevertheless, I did it---and How?

“Well-as well as I can tell it, by taking one step at a time, reading-reading—reading-- everything that I could get hold of—which I thought would be improving, every chance I had to do so- and by constantly praying God to help me get there.”

Howard’s reading, both before and after his self-studies took him in the direction of the law, took place in circumstances far removed from a comfortable reading room in a library.

From an early age, Howard worked on the farm, reading and studying as best he could.

“You ask——When I did my studying and reading that I have told you about?

“I did it at night, almost exclusively, except on Sunday. We had no lamps then, and could not afford candles. But there was what was called ‘lightwood’, which is simply the knots and hearts of pine logs off of which the sap has rotted in the woods. This was plentiful in the wooded country about three or four miles distant, which was called the ‘barrens’. Now and then I would take a day off, drive to the ‘barrens’, in a wagon and bring home a load of lightwood. This was split up into small pieces and by using one small piece at a time in the fire place, we got sufficient light to read by, and thus a load was made to last a good while. Of course, we used the lightwood only when we wanted to read something. It made a better light to read by than could a candle, if we possessed candles—which we did not.

“So—every night—as soon as I finished supper, and had done other things necessary to be done, I would take a seat at the corner of the fireplace and would read from that time, till bed time. Often my mother had difficulty in getting me to stop and go to bed. My mind backs back to those old days so often. As I remember it, my night reading was devoted to my regular studies, histories, biography, and the like, and my Bible reading was reserved for Sunday.”

Although Howard’s educational path was about as far from Christopher Columbus Langdell’s courses at Harvard as one could get, Howard agreed with Langdell on one thing – learning needs to be active.

“Of one thing, I am convinced, in the education of the young, generally there is too much effort at teaching knowledge. I believe the effort should be to lead the young to acquire knowledge himself.

“Acquired knowledge sticks by him; taught knowledge is not so apt to do so. But--—what do l know about methods of education? Bah!”

At age 19 Howard took a job working on a small farm as an overseer, doing physical labor side by side in the fields with the other hands. The owner of the farm had a copy of Blackstone’s commentaries, and for two years after the day’s field work Howard would try to decipher the book. A bout of typhoid fever derailed both the job and his health, and left Howard wondering what to do next.

Even in an age before high tuitions and high interest student loans, coming up with enough money to provide living expenses while studying the law was a challenge. Howard’s solution was to venture into tobacco farming, a traditional cash crop in southside Virginia.

“At the end of those two years, the only visable [sic] progress I had made towards becoming a lawyer was the fact that I had read BIackstone’s Commentaries and understood it right well. It became obvious to me that if I was to reach the goal I must have a little money. All that I had made during the previous two years had been absorbed by sickness and other uncontrollable ways. For me—the only way to get it was to make it. But how?

“By the following spring, I had sufficiently recovered to go to work. But, I thought it inadvisable to undertake to ‘overseer’ someone else’s farm—or to teach something I knew nothing about. Hence, with the approval and encouragement of my father and mother, to stay at home and make a tobacco crop ‘on my own book’—which I did. There was no team available for me, for that purpose. So, I bought from my uncle Billy Howard a yellow steer, named ‘Duke’ at the price of $30.00 on credit to be paid when I sold the tobacco crop which I was to make.

“There was no available barn for me to house my tobacco in when it would be made; so, I went into the woods, cut the oak logs and other material, shived [sic: an amendment in pencil possibly renders this word to be ‘rived,’ which means ‘to split or to divide’] the boards for the cover, hauled them in with my steer, built the barn and had it ready for the tobacco on time. One man cannot raise a barn by himself, so I called in the neighbors to help me about that, as was the universal custom in those days. In fact, ‘house raising’ was always a kind of a neighborhood frolic, at which a good dinner was always served, and generally something to drink. Everybody was glad to be invited, notwithstanding the heavy work. I did all the carpenter's work. I was and still am proud of that building. It was a good one and is still standing and in good use of Wm. Elder, its present owner.

“I sold that tobacco crop and the steer for enough money together to pay Uncle Billy his $30.00 for the steer, the fertilizer used in making the crop, a few farming implements and to buy a horse, which I thought more desirable to have than a steer. It was a beautiful little black mare, suitable for riding as well as for work. My wife will remember this mare, it being the same that I used to ride to see her when I came a-courting in earnest.

“The following year I made another crop of tobacco and from the proceeds of it’s [sic] sale and from the sale of the mare, I had enough money to start me again on the road to the Bar. Did I say enough money? Not enough, but I started again, nevertheless. Mr. and Mrs. Carrington had kept in close and intimate touch with me and they, both, prevailed upon their kinsman, Miles M. Martin, Attorney at Law, to take me with him in his office at Charlotte Courthouse, Virginia, as a helper with student priviledges [sic]—he to give me such assistance as he could—and I to help him as much as possible. I had never seen inside of a lawyer’s office. But it did not take long for me to get used to my new environment—lawyers—law books-clerk’s office and courts- very different from what I had been used to. Nobody there ever found what an ignorant chap l was. Fortunately, I had the gumption of not talking too much. A person is always fortunate if he can keep his tongue from getting ahead of his brains.”

After a year, in October 1878, Howard had progressed enough to seek bar admission. At that time, the process of admission to the bar was quite different from today’s bar exam.

 “In those days an aspirant to practice law got his license by standing two separate examinations, before two different Judges of Circuit Courts. My examinations were by Judge Asa D. Dickinson of Prince Edward Co., at Charlotte C.H. during a term in his court there and Judge Wm. M. Treadway of Pittsylvania County at Halifax Courthouse, during a term of his court there. The examination of each of them was conducted in his private room at his hotel. It was rather the cunning habit of applicants to take his first examination before the Judge he considered the most indulgent with the idea that after he got the signature of the Judge on the first examination, the second Judge would not consider a rigid examination necessary.

“Well, I applied to Judge Dickinson first. He was a fat, lovable and indulgent, as well as able, old Judge. Besides, he knew me well and knew the extent of my ignorance before the examination as well as he did afterwards. My confidence was well placed. He gave me a perfunctary [sic] examination and signed my license. This looked good to me. So, the next week I went over to Halifax Courthouse and presented myself to Judge Treadway, stating the object of my coming. He told me to come to his room next morning at 9 o’clock. He seemed pleased to see me and ready to start. He told me to sit down. I did. But before doing so—l showed him my license emphasizing the fact that Judge Dickinson had already signed. Misplaced Confidence? He sat down, crossed his legs and pitched into me. He asked me every question he could think of, I am sure covering the common law; Equity and Practice. He seemed to be having a ‘hell of a good time’—-I didn’t. He kept me at it for two hours, an hour passed [sic] the time when he should have opened his court. At last—he said-—-’alright’ [sic], and signed my license.

“Fortunately, I had read during the several practicing years, something on every subject he touched on and I really believe my showing was not discreditable. But he seemed to gather momentence [sic] as he proceeded and I had begun to wonder if he would ever stop. I afterwards had the satisfaction of hearing that he remarked to another lawyer that I had stood the best examination of any young applicant before him for examination.

“That was very gratifying and encouraging to me.

“Then I became entitled to write ‘Attorney-at-Law’ after my name of which I was really proud.”

Howard – after some experimentation with non-legal work in the western states - went on to become a trial lawyer based out of Lynchburg, Virginia. Over the course of a long career, he tried and argued cases in every level of court in the state of Virginia as well as in every federal courtroom in the state. As he grew more experienced, his practice shifted in large part to being brought in to assist other lawyers, which led to trials in Chicago and New York.

Comments

[Beau Baez]

It would be interesting to know what standard judges used in making their decisions to admit someone to the practice of law. Was it just a good faith standard, minimal competency, minimal competency for a new lawyer?

[Ray Campbell]

My understanding is that it varied very much by area. The established bars of the coastal cities were one thing, but the frontier jurisdictions were quite different. In Philadelphia and Boston, the standard was pretty high. In a mining camp in Montana, not so much. In the decades following Howard's admission law school and bar exams became the norm, in part as a conscious effort to raise the standards of field.

[Al Brophy]

Ray, this is a really interesting piece. Beau's question raises another question in my mind, which is related to discussions we're having now: what was the pass rate for those 19th century exams? And what were the questions judges asked? And as long as we're talking about questions on the 19th century bar, to what extent did examinations in schools prepare students for those questions? (A while back I saw a mid-term exam that James Holcombe asked at UVA before the Civil War; those questions were tough.)

And on a lighter note, you've given me two other courthouses that I want to visit sometime soon -- Charlotte County and Halifax County.

[Marcos Antonio Mendoza]

Thanks for sharing! I too would like to know more about the standards of the day—I have a feeling it varied as much as the backgrounds of the examiners.

It does seem that lawyers of past eras had the desire to keep learning throughout their careers, more so than today. Perhaps because there were more general practice attorneys, and had to keep learning. Or that the law was their life, and they were very proud of their profession, and felt it their responsibility, and not just a nominal CE requirement. Regardless, I would encourage the current graduates to pass the bar, take a deep breath, then get back to learning more.

[Ian Holloway]

Ray - this was wonderful. Simply wonderful! Thanks for sharing it with us.

[Ray Campbell]

On the standard, there is a question as to what the stated standard was - if there was one - and what the standard on the ground was.
It's an interesting question as to whether there was a standard beyond 'fitness to be a lawyer' and one of the issues is who would promulgate the standard. At this time, the ABA was in its infancy and state bar associations were similarly immature. There was no national board of bar examiners, and I suspect no state boards other than a court of appeals paying some loose attention. In terms of the standard on the ground, it clearly varied by geography, based on what I've read. In some of the frontier districts, based on similar anecdotal accounts, it may sometimes have been close to 'can read and write.'
I suspect that this kind of decentralized system also lent itself to flexible standards on the ground based on who the applicant was. Howard, although dirt poor, was from a 'respectable family' and had relatives in the professional classes. At a time, in Virginia, when family ties were very important, I suspect this mattered. On the other hand, I suspect someone who was outside the kinfolk network would have a harder time, and I especially suspect that someone who was Jewish or African-American in that time and that place would have faced a withering exam, and may have found passing all but impossible. Our current system no doubt embeds biases and flaws, but by its design it is more susceptible to scrutiny than the system of that day.

[Barry]

Thanks for posting this!

[[M][@][c][K]]

Ray,

What is interesting though is that the Bar Exam as pressed for by the ABA was described by Henry S Drinker, a name partner in Drinker, Biddle and Boothe was that it would help keep out the lower orders, those who came up from the gutter "the Irish, Italians and little Russian Jew-Boys" the latter being a well known obsession of Drinker.

When you dig into the history, it is pretty apparent that the tightening of bar admission standards that started in the 1920s and 1930s was intended to be exclusionary, to make the bar an upper class WASP profession. One area of pressure was to require 3 years of full time law school and in Massachuttes and other states tremendous pressure was advanced by Harvard and other law schools to shut down the night law schools like Suffolk.

In the end the advent of clear standards for admission actually undermined the elitist project. But thea was in part because the bigotry and racism of ABA leaders like Drinker rendered it inconceivable to them that the lower orders could comply with the standards.

[Mike Wells]

Having been born in Halifax County, and having worked on a tobacco farm as a kid, I of course found this quite interesting. I can also affirm that it was a lot easier to become a lawyer a century later, just by getting a degree from U. Va. Law School.