THE RELATIONS BETWEEN the more and the less developed areas of the world everywhere provide a fertile field for lawyers. When there is a metropolis, a center of legislation and organization, a source of capital and knowledge and know-how which draws power and profit from lands at a great distance, there are all sorts of well-paid chores which require the lawyer’s techniques. The multiplication of American lawyers in the colonial period was partly explained by the needs of novel colonial enterprises and by the expanding, unprecedented relations with the government back home in England. In London and Paris during the late nineteenth and early twentieth centuries, ambitious young colonials from Africa, Asia, and Australia could be found studying law to prepare themselves to return to places of wealth and power back home. When independence and anticolonial movements grew, these same lawyers, trained in the technical language of imperial relations, became constitution makers, government shapers, and political leaders of new nations.
The American West developed a relationship to the Atlantic-coast metropolises during the nineteenth century which was similar in many ways to that between British colonies like Australia and the metropolis of London. There, too—in Montana, Wyoming, Colorado, and the other states of the cattle-raising, mineral-rich West—the new investment capital had to be drawn from Eastern metropolises, thousands of miles distant. And this opened the way for enterprising lawyers who had new duties and opportunities as promoters, organizers, and intelligence agents.
In Old World empires, the enterprise and technical know-how of these agents of the metropolis were drawn off to the new countries, and so were subtracted from the national resource. In the United States, the federal system of a burgeoning rich continent kept these ambitious energies within the nation, and allowed them to be freely transplanted with shifting opportunities.
THE DEVELOPING WEST in the century after the Civil War was the scene of promising new careers in business and politics for young men who had the qualifications or the brashness to call themselves lawyers. Investors in the East employed local lawyers in small Western towns to advise them on the prospects for profit out there in cattle, mining, and railroads. And with this Eastern capital at his command, a young lawyer could do the favors which produced the Western fortunes. He could boost towns into cities, and could himself become a rich man or at least a potent vote getter.
The Wolcott brothers (descended from colonial settlers of New England) were a brilliant example. Edward Oliver Wolcott, the son of a Congregational minister in a small town in western Massachusetts, served when only sixteen as a private in the Civil War. He attended Yale College, received his LL.B. from Harvard Law School in 1875, then went out to join his brother Henry, who had settled in the village of Blackhawk, Colorado. After teaching school briefly there, Wolcott moved to the more promising Georgetown, county seat of Clear Creek County, just west of Denver. There he began to practice law. He became adept in the special mysteries of mining law, which were important to prospective investors in the East. Within a year (in 1876, the very year that Colorado became a state) he was elected district attorney and town attorney, he attracted attention by his work as public prosecutor, and two years later he was elected to the Colorado Senate. After moving to Denver in 1879, Wolcott was a power in Republican politics, and managed to be elected to the United States Senate (the state legislature still made the choice) in 1889 and again in 1895. The Wolcott firm had, by now, been named legal counsel to the Denver & Rio Grande Railroad, and to other large corporations. Wolcott himself was becoming prominent in national politics as an early champion of the silver interests. Meanwhile brother Henry, who had risen to wealth in the Colorado Smelting and Mining Company and the Colorado Fuel and Iron Company, was made president of the Colorado Telephone Company.
As Colorado prospered, the advice and collaboration of the Wolcott brothers became increasingly valuable to cautious Eastern investors, two thousand miles removed from the scene of promises. Henry Hyde, president of the Equitable Life Assurance Society of New York, was one of those who asked them for regular reports on “the political and business gossip.” “I have greater faith than ever in this city,” Henry Wolcott reported in 1895. “The right kind of people have come to make Denver a home and we have no rival for several thousand miles in either direction.” Soon afterward Hyde invested insurance company funds in Denver to help build two pioneer skyscrapers. But the Wolcotts were not always so optimistic. They shrewdly warned Hyde against buying into the First National Bank of Denver because they had inside information that the management had been “placing too much confidence in the statements made to them by their customers,” and within a few years their fears proved justified.
Out of the need for reliable financial information at a distance grew another American institution that made information its commodity. After the Panic of 1837, the enterprising credit manager of a New York silk jobber saw that many New York wholesalers needed reliable credit information on the country storekeepers who wanted to buy their goods. He suspected that they would be willing to pay a subscription fee for regular credit information. This man, the New England-born son of a devoutly Calvinist family, was Lewis Tappan. By 1849 Tappan’s Mercantile Agency, as his credit-rating firm was called, had made so much money that Tappan could retire and devote himself to the abolitionist work that brought him fame. Just then, R. G. Dun, a twenty-four-year-old self-made merchant from a small town in Ohio, came to New York, where he joined Tappan’s Mercantile Agency. Young Dun’s talent for organizing expanded the business into a national enterprise, and by 1859 he was the sole owner of what became known as R. G. Dun & Company.
In 1861, when civil war came, Dun had offices all over the country, including the South. And after the war, his company flourished by supplying the businesses that were becoming more and more national with the reliable information they needed about faraway customers. Dun hired young lawyers in the small towns out West to make confidential investigations of local businesses. He paid as much attention to gathering information on the credit reliability of the proprietor of the Miner’s Delight bar in South Pass City, Wyoming, as on the owner of the largest general store in Denver. Dun’s long-range program for his clients included the detailed credit analysis of different regions: in 1872 it was Indian Territory (later Oklahoma); in 1873, southern and central California.
It was not easy to organize a continent-wide network of investigators who could secure small-town confidences, and yet not be tempted to put a good face on the financial condition of friends. “Age 32,” went a typical report on a young lawyer-businessman, “a pretty fair lawyer but bears a bad reputation at one time threatened with criminal prosecution in debt now.” Another read: “Fair habits, tho’ he lives up to his income and is not believed to have much responsibility of his own.” Dun’s offices were among the first to use the typewriter, and in other ways, too, Dun pioneered in using new technology. By 1893 he had his own modern printing plant and was publishing Dun’s Review, a weekly report on business conditions. As American business expanded over the world, Dun opened offices in Europe, Australia, and Africa. He died in 1900, but the firm lived on. It became the famous twentieth-century Dun & Bradstreet in 1933 when it merged with a company which had been founded in 1849 by John M. Bradstreet, an enterprising Cincinnati lawyer-businessman.
EASTERN BUSINESSMEN EXPANDING into the half-known West needed counselors and advocates who knew their way around the laws and folkways of Montana, Wyoming, and Utah. Railroad builders retained “local counselors” along their Western routes. One small-town lawyer in Telluride, Colorado, was in charge of the mining interests of the wealthy Livermores of Boston. Others advised wealthy clients in Chicago, New York, or Philadelphia. The remoteness and geographic vagueness of the West which made it fertile of hoaxes and mining swindles also opened the opportunity there for an honest young man to secure the confidence (and sometimes, too, the capital) of powerful Eastern industrialists. It was the day of the organizer, the man who prospered by inventing new ways of drawing small units into more profitable large combinations. In the sprawling nation, the lawyer was apt to know how it could (and couldn’t) be done. If he was clever, ambitious, and energetic, his know-how could serve him for capital.
Because the railroads touched so many questions of property—involving land law, public franchises, the law of common carrier and eminent domain, among others—the railroad builders especially needed lawyers. Railroad systems grew by adding one line to another, reaching out to new jurisdictions, across new states or territories. It was a great day for the lawyer-organizer.
One of the most brilliant of these was James Frederick Joy, who arrived in Detroit in 1837, the very year that Michigan was admitted to the Union. Having graduated from Dartmouth College and the recently founded Harvard Law School, he was unusually well prepared to seize the opportunities of the moment. The new state of Michigan had just authorized a $5 million loan to build three railroads across the state, but the Panic of 1837 intervened before much progress could be made. Joy persuaded the politicians to sell these railroads to private investors, and then induced some New York and Boston businessmen to put up the $2 million to buy the Michigan Central. In 1850 he helped push their line westward to Chicago by negotiating with the Illinois Central to use their tracks, enlisting the help in Springfield of a young lawyer named Abraham Lincoln. And from Chicago he moved farther west. In 1854 he engineered the liberal Illinois legislation to merge four small railroads into the Chicago, Burlington & Quincy, whose very name advertised the extension of the Joy lines westward to Iowa. Taking advantage of the Panic of 1857, Joy bought at a bargain price another railroad, which had just secured a federal land grant of 350,000 acres.
By 1873 Joy’s lines reached Kearney in central Nebraska, where they linked with the Union Pacific, which reached all the way west to the ocean. Joy then moved south toward the Gulf of Mexico, adding one little railway line after another, accumulating valuable state charters and federal land grants as he went. He founded canal companies to connect with his rail lines. And he became a pioneer bridge builder. The crucial weakness of his Burlington line between Chicago and Kansas City was the lack of a bridge across the Mississippi. He formed a company in 1868 especially to build the bridge at Quincy and defied critics by spending $1.5 million on the project. The Burlington’s business in that area doubled the following year. He then went on to build the first permanent bridge across the Missouri, at Kansas City. When Joy retired from the presidency of the Burlington he was succeeded by another lawyer, who had made his start as the local attorney for the Michigan Central.
One of the most ingenious of the lawyer-organizers was Samuel C. T. Dodd, who had the good luck to be raised in a little town in western Pennsylvania near the first oil strike. In 1859, the year when Drake struck oil, young Dodd had just been admitted to the bar after obtaining a degree at Jefferson College and serving two years’ apprenticeship in his native Franklin. Seeing that the growing oil business would require legal invention, he became an expert on corporation law when other small-town lawyers had barely heard of the subject. It was Dodd who developed the trust. He transformed that familiar device of English equity into Rockefeller’s instrument of business combination, and then, as Rockefeller’s confidant and as principal counsel to the Standard Oil Company when trusts came under attack, he devised the “holding company.”
AMERICAN NEEDS for new devices to explore and exploit the continent, and the random quest for fortunes, produced myriad new techniques, machines, and gadgets. While the inventor himself might be a lonely, unworldly genius, there was commonly somebody else nearby who saw the chance to make a fortune. These calculating bystanders were often lawyers. There was hardly a major invention in the century after the Civil War which did not become a legal battlefield. While many battles were fought over patents, questions of patent law were inevitably confused with technicalities of contract, corporation law, taxation, and all sorts of common-law rights and duties. And these were entangled too with “interstate commerce,” conflict of jurisdictions, and other mysteries of the Constitution.
The cast of characters in the American patent dramas varied, but the plot was remarkably uniform. Several men more or less simultaneously would devise a new machine or technique. Each wished to keep for himself or for his licensees all the profits of production. Meanwhile scores of businessmen would have entered the scene, having purchased fragments of the legal rights of the competing “original” inventors. Then, of course, every “improver” claimed that his version was the only one which really did the job. Legal battles went on for decades, but regardless of which inventor or businessman won a battle, the lawyers always won the war. They emerged not only with substantial fees, but also with expert knowledge of the company’s rights and vulnerabilities that not infrequently left them in control of the firm. Beginning as pilots, they ended as captains.
This drama was reenacted with a familiarity that would be monotonous if the personalities had not been so flamboyant, the hopes so extravagant, the stakes so enormous, the products so unprecedented. There were the stories of the sewing machine (Elias Howe, Jr., against Isaac Merrit Singer and others) and the reaper (Cyrus McCormick’s battles against Obed Hussey and others, engaging the legal talents of William H. Seward, Edwin M. Stanton, Judah P. Benjamin, Roscoe Conkling, and Abraham Lincoln), and the many legal battles surrounding the introduction of barbed wire, the telephone (Alexander Graham Bell against Elisha Gray, Thomas Alva Edison, Emile Berliner and others), and the phonograph. It was a sign that the time was ripe for an invention when a number of inventors were perfecting it simultaneously, and when the best lawyers had found it worth their while to organize the contending forces. The importance of any new technique in transforming American life could roughly be measured by the quantity of lawyerly energies which it called forth. It is not surprising, then, that while the century after the Civil War produced few legal classics and not many great American judges, there was a bumper crop of rich and famous American lawyers.
None of the legal battles was more prolonged, or more dramatic, than the Battle of the Automobile. The central figure in that battle was a man who, by the skillful combination of technical know-how and legal technique, dominated the production of automobiles in the early, formative years of the industry, but whose name never became a household word. George Baldwin Selden was a man with a bent for engineering and the inventor’s capacity to be dominated by a single purpose. His father, a prosperous and strong-willed lawyer of Rochester, New York, had served as judge of the State Court of Appeals and as lieutenant governor, and he was determined that his son should become a lawyer. After a brief tour in the Union Army, young Selden studied classics at Yale, attended the Sheffield Scientific School, and then, obeying his father’s wishes, entered his father’s law office as an apprentice. According to Selden, a chance conversation he overheard between his father and a client on the possibilities of a self-propelled road vehicle gave him the idée fixe of his life.
By 1871 he was admitted to the bar and opened his own office as a patent lawyer a few years later. George Eastman was his client, and in his Rochester office he prepared Eastman’s application for a patent on the process for coating gelatine on photographic dry plates, which opened the way for celluloid film and the motion pictures. Meanwhile, in off-hours in his basement workshop Selden tinkered with various inventions of his own. He made a device for attaching solid rubber tires to wheels, he patented new machinery for making barrel hoops, and he designed a typewriter. But his ruling passion was a self-propelled road vehicle. The “road locomotives,” of which a few were already in use in the early 1870’s, were boilers on wheels. Though they weighed three tons, they could be moved about for farm work. Enlisting the help of a Rochester model maker, Selden tried to perfect a light-weight engine. By 1873, when he was only twenty-seven, he decided that for his purposes an entirely different power source was needed. He intended, as he told a friend, “to work a revolution in locomotion upon common roads, and … his invention would be entitled to a place in industrial history analogous to that of the inventor of the steam engine, the locomotive, the cotton-gin and the telegraph.”
Selden then began experimenting with internal-combustion engines. The earliest such engines, already in use in Europe by the 1870’s, were stationary units fueled by pipes attached to the town gas system. When Selden and his partner went to the Philadelphia Centennial Exposition in 1876 to demonstrate their patented machine for shaving and finishing barrel hoops, he studied the array of engines there displayed. Most promising for Selden’s purposes was the Brayton engine, developed by an Englishman living in Boston. By contrast to the others, which operated on illuminating gas piped to the machine, Brayton’s engine used crude petroleum. But this machine, too, was impossibly cumbersome, taking 1,160 pounds of machine to develop 1.4 horsepower (828½ pounds of machine per horsepower). Selden imagined a way of redesigning the machine to reduce the weight of the engine so it might be the power source for a light road vehicle. By 1878 he had produced an engine weighing 370 pounds which developed 2 horsepower (only 185 pounds per horsepower).
From this time on, Selden diverted his energies from the effort to improve his vehicle to his attempt to secure the maximum legal protection of his imagined right to profit from all future self-propelled road vehicles. In 1879, instead of submitting a working model to the United States Patent Office, as the law required, Selden offered a model which only represented “in outline the general features,” and relied mainly on a verbal description. This was a calculated tactic, for while the right to legal protection dated from the time of first application for a patent (in Selden’s case, May 8, 1879), the expiration of the seventeen-year right to control a patent dated from the granting of the patent. Selden therefore applied for his patent as early as he could, but shrewdly delayed his actual receipt of the patent as long as possible. Meanwhile he took advantage of the inventor’s option to amend his application, adding to his original design any improvements that later came to his attention.
Selden thus cleverly avoided risking his idea to the specificity of blueprints or working models until the manufacture of motor cars seemed to have become profitable. Not until November 5, 1895, sixteen years after Selden’s patent application, did the U.S. Patent Office actually issue him patent No. 549,160 for a “road engine.” This long delay had extended Selden’s rights to royalties into a period when the financial community was willing to invest its capital in manufacturing “road engines.” Thus, concludes William Greenleaf, the historian of the Selden patents, “an inventor who might have ranked as an honored automotive pioneer became instead a hawk-like figure lying in wait.”
But Selden’s waiting was rewarded. In 1899, while reserving a royalty on each machine, he sold the patent rights to a group of financiers. In the following year they brought a successful lawsuit for infringement of the Selden patent. As a result of this suit, in 1903 ten leading automobile makers combined to form the Association of Licensed Automobile Manufacturers and purchased the right to use the Selden patent at a royalty of 1¼ percent of the retail price on each automobile sold. Within a few years, Selden was receiving a royalty on almost every car manufactured in the United States.
The challenge to Selden did not come from businessmen, who appeared willing enough to pay him their tribute so long as they could share the profits. Instead it came from another inventor who lacked the lawyer’s expertise but who was securely clad in the armor of a primitive moralist. Henry Ford applied to the owners of the Selden patent for one of their usual licenses to manufacture automobiles. They refused for the reason, among others, that Ford was a mere “assembler” of the automotive parts made by others, and not truly a “manufacturer” at all, and so was not possibly qualified to receive the license which went only to competent manufacturers. Ford, confirmed in his Populist hatred of monopoly, went ahead anyway making his automobile, which he said was “the product of his own brain and no man on earth was entitled to any ‘rake-off’ from that particular car.” He already had his vision of a car inexpensive enough to sell by the millions.
The Selden group started an infringement suit against Ford in 1903. It was eight years before the United States Court of Appeals settled the matter. The landmark decision by Judge Walter Chadwick Noyes provided a wonderfully legalistic anticlimax to what may have been the most expensive single litigation in American history. The Selden patent, said the court, was valid. But, Judge Noyes explained, showing a remarkable grasp of automotive engineering which he had acquired for the occasion, Ford had notinfringed the patent! The Selden patent covered only automobiles modeled on the Brayton two-cycle engine, while Ford’s cars (and nearly all others being manufactured at the time) used a form of the substantially different Otto four-cycle engine. Selden was given a dose of his own medicine. The judge showed how Selden could win on legal points, and yet lose the game.
By the time the decision was rendered in 1911, Selden’s patent had only a few more months to run. His royalties stopped at once. When Selden himself turned to manufacturing automobiles, he could not make a go of it. In his last words on his deathbed in 1922, at the age of seventy-seven, Selden proclaimed, “Morally the victory is mine.”
Henry Ford, of all people, became the champion of the view that all patents were immoral. Really, Ford was fond of repeating, there was “very little new under the sun.” When he ran for United States Senate in 1918, he declared his intention to abolish all patent laws. “They don’t … stimulate invention—that is an exploded theory. But they do exploit the consumer, and place a heavy burden on productive industry.” He explained in 1921, “I have taken out 300 or 400 patents in all countries, and I undertake to say there is not a new thing in our car.”
The long battle itself had been a victory for the lawyers on both sides. The total amounts paid in royalties under the Selden claim had been about $5.8 million. But after subtracting all the various fees and commissions for production, management, sales, and legal advice, the sum that had actually trickled through the numerous corporate and partnership agreements into Selden’s own pocket was only about $200,000. Lawyers’ fees from the pro-Selden Association of Licensed Automobile Manufacturers in the first three years of the litigation against Ford came to $225,000, and were matched by a similar sum in the next five years. Ford paid his lawyers about $250,000. Incidentally, too, since the case was front-page news for many years, the lawyers received priceless advertising and publicity which built several of their political careers.
In the century after the Civil War, American lawyers attained a new kind of power. While the fees paid to lawyers were never a measure of their influence, the increase in lawyers’ incomes in the twentieth century was remarkable. In 1929, the first year for which Department of Commerce statistics are available, some $689 million was spent for legal services. In 1968, the figure had reached $5.2 billion. For each year the amount spent on legal fees amounted to about two thirds of all the sums spent by individuals in that period on religious and welfare activities. “It is almost unbelievable, but true,” observed Martin Mayer in his popular survey of lawyers, “that nobody has any very precise notion of what is done for the money.”
WITH THE WIDENING American opportunities for lawyers, it is no wonder that their numbers increased without precedent. And to supply men qualified to seize the opportunities, there flourished another American institution, the Law School. There was nothing quite like it in any other modern nation. In England, even into the twentieth century, the training of lawyers was left either to small self-perpetuating aristocratic guilds in London or to general undergraduate programs in “jurisprudence” (often chosen by students because they were reputed to be easy) at aristocratic universities. In America even in colonial times, there were signs that the guild monopoly was being broken. In the mid-nineteenth century, with the settlement of the West, the founding of new states, the building of canals and railroads, and the construction of modern industry, peculiarly American opportunities for the legal profession called into being American law schools. These became richly endowed, specialized postgraduate institutions to train lawyers.
In 1833, it was estimated, the students in the United States taking any kind of school instruction in the law numbered about 150. The American pioneering in legal education, not surprisingly, began in New England, where the spirit of enterprise, the closeness to English sources, and the presence of Harvard College and its many enlightened benefactors prepared the way. Harvard Law School came gradually into being in the early decades of the nineteenth century, after the appointment of the first professor of law there in 1816. By 1860 there were already in the United States 21 university law schools, of which 12 still required only one year’s work. New norms were set when, in 1876, Harvard lengthened its course to three years, and required for admission either a college degree or three years in Harvard College. The number of law schools increased to 51 in 1880, 102 in 1900, and 190 by 1938. These institutions continued to increase their enrollments until, by 1970, they were granting over 18,000 law degrees each year.
A great nationwide change in American legal education appeared after 1870. The common-law way of thinking, perfected and applied by Chief Justice Lemuel Shaw in Massachusetts and by others elsewhere, was primarily a judge-declared law, which deftly bent ancient traditions and esoteric vocabularies to the new needs of the coming age of railroads. Before then, the lawyers who rode legal careers to national fame were men like Rufus Choate and Robert Y. Hayne and Daniel Webster and Judah P. Benjamin, noted for their oratory, their mastery of constitutional issues, and their skilled advocacy in such traditional subjects as contract and the law of land. James Kent, Joseph Story, and Nathan Dane built their reputations as shapers of the law on their legal treatises which expounded and clarified principles.
After the Civil War the peculiarly American challenge to ambitious young men hoping for a legal career came less from the mastery of grand legal principles than from an attention to minutiae, a concern for new nuances of fact, and an ability to negotiate and manipulate. Now the law seemed less a treasury of principles to be discovered than a set of instruments to be used. These uses could be discovered in schoolrooms only if somehow the law classroom became a laboratory of living situations. There the student might see how the legal tools had actually been used, and for what purposes.
A new approach to legal education, signaling a vigorous new American approach to the uses of law, was the invention of a dean of Harvard Law School, Christopher Columbus Langdell. He had been selected in 1870 by Charles W. Eliot, the new president of Harvard whose background as a chemist made him sympathetic to a new kind of laboratory approach to the law. Langdell’s reform—the “case method” of instruction—was marvelously simple. The students, who formerly would have been required to read treatises expounding “general principles” of the law, were now exposed to the actual cases in which the principles had been applied. The traditional treatise was replaced by a new kind of legal laboratory manual: the “casebook.” Langdell’s own Selection of Cases on the Law of Contracts (1871) was the first. The casebooks collected examples of actual situations in which the legal principles had been applied. The attention of students was thus directed to factual minutiae and to the whole social context in which the case occurred. The object was not merely to acquaint the law student with the doctrines of law but, Langdell explained, even more to give him “such a mastery of these as to be able to apply them with constant facility and certainty to the evertangled skein of human affairs.” By 1910 most American law schools had adopted this case method. English law schools, in the same common-law tradition, continued to use old-style textbooks. While the training of lawyers was given a new academic dignity, law students were rapidly given a wide and usable knowledge of practical legal situations. The law, once a metaphysic, had become a social science.
“A town that can’t support one lawyer,” goes an old American proverb, “can always support two.” Of the new opportunities opened by American civilization in the century after the Civil War, none were more striking than those for lawyers. The multiplying legislatures (by 1959 there were one hundred state lawmaking bodies, in addition to the Congress), the proliferating regulatory agencies, and the multiplying courts—federal, state, and municipal—provided opportunities, forums, and rewards for the nation’s lawyers. By 1970 there were some ten thousand judges and a third of a million lawyers in the United States.