Early Foundations and Formative Years

The following is a post which discusses the early history of the University of Alabama School of Law. It covers incidents, developments, and personalities dating from the 1840s, which saw the earliest efforts to found the school, until the deanship of Albert Farrah, which began in 1913. This post is the first in a series designed to carry us through the highlights of 150 years of Law School history. In this series we shall employ several authors, who will focus on either chronological or topical approaches to the issues at hand.

EARLY FOUNDATIONS AND FORMATIVE YEARS

Consistent with other new territories and states which were emerging during the early nineteenth century, supporters of Alabama realized the importance of establishing an institution of higher education to strengthen the transition from a frontier environment to that of a productive society. On April 20, 1818, the United States Congress approved an act that reserved an entire township in the Alabama Territory “for the support of a seminary of learning.”[1] Almost one year later on March 2, 1819, the Enabling Act for the admission of Alabama to the Union provided for a second township to be added to the land grant to support the institution.[2] By 1820, the General Assembly of the state of Alabama passed “An Act to Establish a State University,” however, the new institution would exist only on paper until it opened its doors at Tuscaloosa eleven years later on April 12, 1831.Image of Enabling Act, University of Alabama. The new university was charged with the “promotion of the arts, literature, and sciences.”[3] Early course offerings between 1831 and 1845 consisted of: Moral and Mental Philosophy, Ancient Languages, Mathematics, Chemistry and Natural History, English Literature, Mineralogy and Geology, and Astronomy.[4]

Well into the early nineteenth century, the study of law was typically pursued through the practice of traditional law office apprenticeships. Young men aspiring to practice law as a profession were chosen by judges, or well-established and respected senior lawyers, to “read law” in their offices or chambers. Through the study of select cases, and legal works such as those of William Blackstone and Edward Coke, an apprentice would absorb the required knowledge to pass examination sufficient to be admitted to the bar. The first law schools in the United States were inspired by these law apprenticeships and employed many of the same techniques.[5]

Throughout the nineteenth century, the study of law moved from apprenticeships to the college and university systems that developed throughout the century.[6] By the early 1820s private law schools, which were the first institutions to offer serious professional training, were being absorbed into college and university systems providing prestige as well as the ability to grant degrees.[7] For colleges and universities, this strategy offered the benefit of adding an already established legal training program to their curriculum.[8]

By 1843, trustees at the University of Alabama began examining the idea of adding professional schools to the university. In addition to the notion of adding a medical school to the professional curriculum being considered, university trustees were enthusiastically planning a law school.

Portrait of Benjamin F. Porter.
Benjamin F. Porter

The trustees met in December 1845 to establish the guidelines for the new law school, and during the winter of 1845-1846 announced in the university catalogue the appointment of a prominent legal authority and fellow trustee Benjamin F. Porter as the first professor of law.

Unfortunately, Porter’s ambitious plans for the two-year law degree at Alabama were never realized. University trustees had imposed harsh regulations for the law school that assured its secondary status to the regular faculty and university. Restrictions such as prohibiting university students from attending law lectures, not allowing law lectures to be given on the university premises, as well as matters of discipline in which regular university faculty had authority over law students including the power of expulsion were overly restrictive. Furthermore, law students were not allowed access to the university dining hall or university housing. Funding in support of the law program was also problematic. The law professor’s salary was determined by student fees and no university funding was to be used to support the law school. The law school faculty was restricted to a single professor of law who was required to confer with state supreme court judges in planning lectures and selecting textbooks. The university trustees and faculty had imposed regulations and restrictions on the law program which contributed to its failure. As the result, no students registered for classes and the law program foundered.[9]

The second attempt to establish a law department within the University of Alabama reflected the earlier pattern of universities such as Yale in 1824, Harvard in 1829, the University of North Carolina in 1845, and Tulane in 1847, all of which absorbed existing private professional legal training into the university structure.[10] On January 25, 1860, the Montgomery Law School was designated as the “Law Department of the University of the State.”[11] The law school evolved from a series of lectures developed by chancellor of the southern division of Alabama, Wade Keyes.[12] Image of an advertisement for the Montgomery Law School.Born in Limestone County, Alabama in 1821, Keyes studied at LaGrange College, the University of Virginia, and graduated from the law department at Transylvania University at Lexington Kentucky. After extensive travels, Keyes returned to Alabama and soon established himself in the Alabama legal community.[13] He began teaching classes on property law at Montgomery and soon after, the Montgomery Law School developed as an expansion of those lectures.[14]

The state legislature appointed its state supreme court justices as ex officio trustees of the school with the power to assign professorships, create by-laws, and control the real and personal property of the school.[15] Although the school was designated as the Law Department of the University of the State, mutually protective language within the act allowed either the trustees of the University of Alabama, or the Montgomery Law School to dissolve the connection between the two institutions.[16] Very likely this protective agreement was influenced by the earlier administrative failures of the university’s attempt to establish a law program in 1846.

The Montgomery Law School offered students full use of the state and supreme court libraries and classes were conducted within the state capitol.[17]

Photograph of the Alabama state capitol.
Alabama Capitol

The curriculum was divided into three levels that included Junior, Senior, and Moot with tuition assessed at fifty dollars for each session. There were two sessions per year, beginning the first Monday in March and the first Monday in October.[18] The law school was authorized to confer degrees and to license students to practice in Alabama’s court system. Additionally, diplomas were awarded based on subjective evaluation of the student’s performance which represented a significant break from the law office apprenticeships that allowed a student to practice law on the completion of a set of quantitative, and often minimum requirements.[19] On this point Keyes noted, “it is scarcely necessary to say to the young men of the State who propose to study law that it is better, caeteris paribus [all things being equal], for those who intend to remain in the State, to study in a school of the State.”[20] Beginning its operations in March 1860, the Montgomery Law School completed two sessions ending in February 1861.

The literal drumbeat of war overshadowed Keyes’ short-lived law school as Alabama had seceded from the Union the previous month and was preparing for war. Although the law school was well organized, administratively sound, had scholarly leadership and good resources, it was not enough to sustain the school through the turbulent and destructive years of the Civil War.[21]

Following the burning of the university by federal troops on April 4, 1865, the University of Alabama struggled to reopen in the challenging postwar world. Eventually the university reopened during the 1871-1872 academic year, although only ten students enrolled, four of them sons of faculty members. In a difficult environment which was amplified by Reconstruction-era political concerns, the university attempted to balance the demands of institutional viability and its desire to provide a faculty free of political influence with mixed success.[22] However, it was during this period that the permanent establishment of the law school was finally realized in February 1872 with the admission of four students; an additional two students were admitted in October. University president Nathaniel Lupton acknowledged the establishment of the law school to the regents, reporting “With proper encouragement on the part of the Regents and the same liberal policy heretofore extended by the faculty I am led to believe that the law department is no longer a mere experiment, but a permanent feature of the University.”[23]

Photograph of Henderson Somerville.
Henderson M. Somerville

From 1872, the school of law was indeed a permanent part of the university and welcomed its first professor of law, Henderson M. Somerville who became known as the “Founder of the Law School.”[24] After graduating from the University of Alabama (A.B. in 1856 and A.M. in 1859), Somerville earned his law degree in 1859 from Cumberland Law School in Tennessee and practiced law in Memphis. He returned to Tuscaloosa during the war in 1862 to teach mathematics at the university. After the university was forced to close in 1865, he practiced law in Tuscaloosa until his appointment as law professor by the Board of Regents in 1872. In addition to his service to the law school, Somerville served as an Alabama Supreme Court Justice from 1880 to 1890, and eventually resigned from his position at the law school following his appointment by President Benjamin Harrison in 1890 to a chairman’s position within the United States Customs Service.[25]

As the sole law professor during his first two academic years, Somerville offered lectures and recitations drawing from texts which included, Walker’s Introduction to American Law, Kent’s Commentaries on American Law, Stephen’s Principles of Pleading, Greenleaf’s Treatise on the Law of Evidence, Blackstone’s Commentaries on the Laws of England, Roscoe’s Law of Evidence in Criminal Cases, and predictably, the Revised Code of Alabama. Additional readings were “encouraged when the student has the requisite time.”[26] Somerville’s course of study was designed to be completed in three, four-and-one-half month terms or a combined eighteen months. It consisted of a combination of lectures, assignments from texts, and moot courts—which relied on assistance from local attorneys. There was no prerequisite for admission, and— reminiscent of the funding strategy from the failed attempt in 1846— student tuition provided the only means for Somerville’s salary. The separation of the law school’s budget from the university’s main “Academic Department” supports the notion that the university expected law professors’ compensation to come from a combination of their private practice and classroom service. By the 1880s, the law school had established the custom of leaning on its own graduates for faculty appointments, including Somerville’s son Ormond in 1896.[27]

Despite the early challenges that Somerville faced in his first few years leading the law program, his leadership produced a successful program by 1874 that graduated nine students who had completed the course of study passing both written and oral examinations. His early success prompted the regents in July 1875 to expand the program including the appointment of additional faculty member John Mason Martin who was hired as professor of equity jurisprudence.[28] Within the year, the university offered further support to the law program by establishing annual salaries of $500 to Somerville and Martin plus the tuition fees that were capped at $25 per session.[29] In addition to the regents’ recognition of the law school’s potential demonstrated by Martin’s appointment and salary support for the faculty, in 1876 the Alabama Supreme Court provided that certified graduates of the law school would be admitted to the Alabama bar and licensed “to practice law in any court of the State of Alabama” without an examination.[30]

With Somerville’s successful beginning, the law school’s enrollment averaged more than fifteen students per year for the next two decades. It was clear to the university administration that the sustained growth required the expansion of the faculty; however, with limited funding the trustees addressed the shortage by enlisting university presidents as teachers as well as the expanded use of local attorneys as part-time instructors.[31] Between 1880 and 1897, all three university presidents—Burwell B. Lewis (1880-1885), Henry D. Clayton (1886-1980), and Richard C. Jones (1890-1897)—were respected attorneys who taught classes in international and constitutional law.[32]

The use of university-connected regular faculty as well as local attorneys as part-time instructors provided a convenient and frugal means to satisfy the early law school’s teaching demands; however, by the 1880s the practice had created a teaching faculty that were often drawn away from the law school by their political aspirations. In 1885, John Mason Martin who had previously served in the Alabama state senate from 1871-1876, was elected to the United States House of Representatives. University trustees encouraged him to maintain his connection to the law school, however, he eventually returned to private practice in Birmingham after serving one term in Congress.[33] Tuscaloosa attorney and state legislator Andrew C. Hargrove was appointed lecturer in equity jurisprudence on Mason’s departure, and was eventually promoted to professor of equity jurisprudence from 1888 until his death in 1895.[34]

Portrait of Andrew Coleman Hargrove.
Andrew Coleman Hargrove

Continuing the practice of hiring from within the community, Alabama graduate, practicing attorney, and former UA Trustee, John D. Weeden joined the faculty in 1885 as lecturer in statute and common law. Indeed, even Henderson Somerville reduced his responsibilities at the law school to devote more time to his duties following his appointment in 1880 as a justice of the Alabama Supreme Court, trading his title of professor in 1887 for lecturer in statute and common law until his departure from the faculty in 1890.[35]

Drawing on its own graduates for faculty positions continued after Somerville’s departure with the appointment of Tuscaloosa attorney and UA law class of 1884 graduate Adrian S. Van de Graaff to the position of Professor of Statute and Common Law in 1891. Additionally, Van de Graaff had married professor Hargrove’s daughter Minnie Cherokee Hargrove the year before joining the faculty.[36] With Hargrove’s departure from the law school, Van de Graaff transitioned to professor of equity jurisprudence and the practice of hiring from within came full circle with the appointment in 1896 of Henderson Somerville’s son, Ormond Somerville, in the position that his father previously held as Professor of Statute and Common Law.[37]

Throughout Henderson Somerville’s tenure, administratively the law school was loosely structured resulting from the early challenges of a developing program, combined with Somerville’s frequent absences as the product of his supreme court responsibilities. From the beginning, the relationship between the law school and the university administration was often unclear. As early as 1875, the university regents asserted direct control over the administrative functions of the law school through the appointment of university president Carlos Smith as “Chancellor” of the law school. However, Smith did not have a law degree and the title had little functional meaning for the law school.[38] By the 1880s as the result of the university trustees’ increasing interest in the law school, they moved to assert more direct control over the law school. University president Burwell Lewis had served on the law faculty; however, with the administration of Henry D. Clayton the lines of authority were redefined. Clayton was made Chancellor of the law faculty and law students were subject to the same rules and discipline as other university students. The establishment of the president’s authority over the law school streamlined the school’s administration and weakened its independence; yet, it also allowed for improvements to the curriculum that conformed to instruction at the top national law schools.[39] The desire to compete nationally is demonstrated in a trustee committee proposal in 1886 that stated law instruction should “conform as nearly as practicable to that pursued in the first class Law Schools in the other American States.” With national standards in mind, as early as 1888 the trustees asked the law faculty to revise the legal program to two years, in fact, the establishment of a two-year course of study would not occur until 1897.[40]

In addition to the changes to the course of study, class fees, and the implementation of an honor code under Clayton’s presidency, the trustees realized the importance of establishing a law library.  During the 1886-1877 academic year, the trustees approved the withdrawal from the main library “such books of law and literature as were appropriate” for the law library.[41] Additionally, the state legislature passed an act in December 1886 authorizing the supreme court judges “from time to time, to set apart and turn over to the Law Department of the State University copies of such second hand or superseded editions of law books, known as textbooks, as may be deemed necessary.” The legislature also provided for other works such as the Code of Alabama, legislative acts, supreme court reports, Brickell’s Digest and other works to be supplied to the law library.[42] In 1887, university trustees approved a $500 initial book budget and enlisted the services of a law student as librarian. Additional works were acquired through a variety of sources such as a collection of books donated in 1893 by university trustee James E. Webb, Montgomery legal bookseller Joel White, and Alabama Supreme Court Justice George W. Stone. Within four years the collection numbered 1,200 volumes.[43]

During the 1880s and 1890s, trustees’ interest in and support for the law school further increased and in 1894 Professor Van de Graaff assertively argued for the trustees to provide for a salaried dean position consistent with other academic departments within the university. No action was taken until March 1897 when trustee and committee chair Willis G. Clark recommended the law deanship as well as a two-year curriculum for the law program.

Portrait of William S. Thorington.
William S. Thorington

The committee did not look beyond its own membership for candidates and in July they selected William S. Thorington as the law school’s first dean. The newly-selected dean received a salary of $2,500 and a residence with the expectation of a salary increase if the number of law students in the future numbered more than thirty.[44]

The law school’s first two deans, William S. Thorington and William B. Oliver provided a transition between the early development of the law program with its many challenges and the long and transformational tenure of Dean Albert J. Farrah from 1913-1944. The law school was thriving and as its reputation grew, enrollment increased from an average of fifteen students per year from 1877-1897, to an enrollment of more than fifty after 1898.

William Thorington attended the university between 1863 and 1865 but did not complete a degree because of the destruction of the university at the end of the Civil War. He read law under chief justice of the Alabama Supreme Court, William P. Chilton, and established a law practice in Montgomery, Alabama in 1867.

Portrait of Ormand Somerville.
Ormond Somerville

He was member of Governor Edward A. O’Neal’s staff (1882-1886), Montgomery city attorney and city court judge (1891-1892) and an Alabama supreme court justice in 1892. Additionally, Thorington had served as a University of Alabama trustee for almost twenty years before accepting the appointment as law dean.[45] Throughout Thorington’s tenure, in addition to his responsibilities as dean, he maintained full-time teaching duties. Unfortunately, the increase in students was not accompanied by an increase in teaching faculty. Thorington shared teaching responsibilities with Ormond Somerville and a number of part-time instructors who were recruited from the local legal community.

However, changes in the makeup of the faculty were necessitated with Thorington’s resignation in 1909 following his appointment by the U.S. circuit court as “special master” for the Middle District of Alabama in the railroad rate cases between the state and railroad companies.[46]

With Somerville’s leave of absence on January 1, 1910, William Bacon Oliver was appointed acting dean in 1910 and dean the following year. Both Thorington and Oliver were challenged with heavy teaching loads which is evidenced by the enlistment of seven local attorneys to compensate for Thorington’s course load after his departure. Although they were functioning in a challenging environment, the standards of the law school were raised during the first deans’ tenure and the two-year curriculum was finally implemented in 1897.[47]

First Year

The Law of Persons; Personal Property (including Sales)

Domestic Relations

The Law of Contracts

The Law of Torts

Constitutional and International Law

Mercantile Law

 

Second Year

The Law of Evidence; Pleading and Practice in Civil Cases

The Law of Corporations

The Law of Real Estate

Equity, Jurisprudence and Procedure

The Law of Crimes and Punishments[48]

Both Thorington and Oliver pressed university leadership to improve the academic standards of the law school; however, entrance requirements remained inconsistent and the workload was frequently irregular.[49] The “textbook and lecture method” of instruction was in place until 1912 when the case method was introduced.

Portrait of William B. Oliver.
William Bacon Oliver

Early instruction focused on the principles of English and American common law with special emphasis on the statutes and specific application of common law in Alabama. Students were advised that it would benefit them to have read Blackstone’s Commentaries before beginning their program.[50]

In addition to the academic challenges that the law program faced, the law school frequently changed physical locations around a campus that was being rebuilt following its destruction at the end of the Civil War.

Photograph of Woods Hall.
Woods Hall

Originally located in Woods Hall in 1872, the law school moved to Manly Hall in 1886 when that building was completed. By 1910, the school was once again uprooted and moved to Barnard Hall where it shared housing with the university gymnasium.

Photograph of Clark and Manly halls.
Manly Hall (left)

In 1912 the law school was relocated to the third floor of Morgan Hall which had been recently constructed, however, it was not completely furnished and was reportedly cold in the winter and hot during warmer months. For fifteen years, the third-floor accommodations at Morgan Hall housed faculty, librarians, and students.[51] The frequent moves were disruptive and made it difficult for faculty and students to focus on their studies, as well as introducing the challenge of moving the law library every few years.

Photograph of Barnard Hall.
Barnard Hall

By 1910, university president John W. Abercrombie led efforts to improve academics at the university. Part of his initiative was directed at improving the law program. With that goal in mind, he lobbied the trustees to enhance the law library, expand the curriculum, and double the teaching faculty to enable the program to be consistent with national trends in legal education. Abercrombie’s recommendations were slow to mature as the result of the president’s resignation in September 1911 followed by Dean Oliver’s resignation in April 1913 to pursue a congressional seat.

Image of Morgan Hall.
Morgan Hall

While many improvements to the law school were evident by 1912 including the first woman graduate in 1907, the law program would soon enter a transformative period under the leadership of President George H. Denny and Dean Albert J. Farrah. It would be during Dean Farrah’s tenure that the law school would earn a place of respect within the university and upgrade the program to national standards. In Dean Farrah’s speech to the class of 1916, he acknowledged Thorington’s contributions to the law school, writing “Judge Thorington became connected with the Law School in 1897 and for nearly fourteen years he labored for her unceasingly and unselfishly, laying her foundations broad and deep…we must not forget that he was a pioneer in the cause and, like all pioneers, he was hampered by lack of proper equipment and adequate facilities and was beset by difficulties and discouragements that would have overcome a less resolute man.”[52]

David I. Durham

 

[1] 3 United States Statutes at Large, 466-467.

[2] Alabama Constitution of 1819, § 6.

[3] Acts of Alabama (1820), 4-5. For the early university, see James B. Sellers, History of the University of Alabama (University: University of Alabama Press, 1953), 3-13.

[4] Thomas Waverly Palmer, A Register of the Officers and Students of the University of Alabama, 1831-1901 (Tuscaloosa: Published by the University, 1901).

[5] Lawrence Friedman, A History of American Law (New York: Simon and Schuster, 1973), 318-322.

[6] See, Friedman, A History of American Law, 318-322; and Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill: University of North Carolina Press, 1983). For a comprehensive treatment of early legal education in Alabama, see Paul M. Pruitt, Jr., “The Life and Times of Legal Education in Alabama, 1819-1897: Bar Admissions, Law Schools, and the Profession,” 49 Alabama Law Review (1997).

[7] Stevens, Law School, 5.

[8] Ibid.

[9] James B. Sellers, History of the University of Alabama (University: University of Alabama Press, 1953), 160-161; and Catalogue of Officers and Students of the University of the State of Alabama: 1846 (Tuscaloosa: M.D.J. Slade, 1846).

[10] Stevens, Law School, 5.

[11] For the enabling legislation of the Montgomery Law School see, Acts of Alabama (1860), 342-344. Additionally for Wade Keyes and the Montgomery Law School see, David I. Durham and Paul M. Pruitt, Jr., Wade Keyes’ Introductory Lecture to the Montgomery Law School: Legal Education in Mid-Nineteenth Century Alabama (Tuscaloosa: University of Alabama School of Law, 2001).

[12] E. David Haigler, “The First Law Class of the University of Alabama,” The Alabama Lawyer, 40 (1979), 373.

[13] Keyes published the legal volumes, An Essay on the Learning of Remainders, 1852; An Essay on the Learning of Future Interests in Real Property, 1853; and An Essay on the Learning of Partial, and of Future Interests in Chattels Personal, 1853. Recognition for his work on property rights earned him an appointment by the state legislature to the chancellorship of the southern division of Alabama in 1853. Keyes’ appreciation for the common law is demonstrated by his dedication in An Essay on the Learning of Future Interests in Real Property, to “The Students of the Common Law, With the hope that it may somewhat open to them This Difficult Learning Without which no one can attain to the excellence of a Common Lawyer.” See, Wade Keyes’ Introductory Lecture, 3.

[14] Wade Keyes’ Introductory Lecture, 4.

[15] Acts of Alabama (1860), 343 (section 3).

[16] Ibid., 344 (section 10).

[17] Ibid., 343 (section 7).

[18] Wade Keyes’ Introductory Lecture, 4-5. Board was available for twenty dollars per month and a few of the students boarded at Keyes’ home. Also, see an advertisement for the Montgomery Law School, Montgomery Weekly Advertiser, March 7, 1860.

[19] Wade Keyes’ Introductory Lecture, 5.

[20] Haigler, “The First Law Class of the University of Alabama,” 371.

[21] The Supreme Court of Alabama listed five men admitted to the bar in February 1861 and likely represent the only graduating class of the Montgomery Law School. Haigler, “The First Law Class of the University of Alabama,” 374. Following South Carolina (December 20, 1860), Mississippi (January 9, 1861), and Florida (January 10, 1961), Alabama seceded from the Union on January 11, 1861.

[22] Sellers, History of the University of Alabama, 308.

[23] Robert H. McKenzie, “Farrah’s Future: The First One Hundred Years of the University of Alabama Law School, 1872-1972,” 25 Alabama Law Review, (Fall 1972): 124.

[24] Ibid. Influential university president George H. Denny (president, 1912-1936 and interim president, 1941-1942) initially associated Somerville with founder status.

[25] Ibid.

[26] Sellers, History of the University of Alabama, 389.

[27] Ibid., and McKenzie, “Farrah’s Future,” 125. Sellers notes as evidence of the early trend of the university drawing from their own graduates for law faculty, between 1872 and 1901, eleven of the twelve men who taught in the law school were Alabama alumni.

[28] McKenzie, “Farrah’s Future,” 125. With the hiring of John Mason Martin, Somerville was made professor of statute and common law. The first nine graduates were: Luther M. Clements, Arthur D. Crawford, Robert Jemison, William C. Jemison, Thomas C. McCorvey, Frank S. Moody, Isaac H. Prince, Sherman Prince, and Thomas H. Watts, Jr.

[29] Ibid., 126.

[30] For the law school’s “diploma privilege” see, Code of Alabama (1876), 156, Rule 16.

[31] McKenzie, “Farrah’s Future,” 126, n.13. By 1876, the Board of Regents had been replaced by a separate Board of Trustees appointed by the governor under the Constitution of 1875.

[32] McKenzie, “Farrah’s Future,” 126.

[33] Thomas M. Owen, History of Alabama and Dictionary of Alabama Biography, 4 vols. (Chicago: The S.J. Clarke Publishing Company, 1921), IV: 1165.

[34] Andrew Coleman Hargrove graduated from the University of Alabama in 1856 and received his LL.B. from Harvard Law School in 1859. He practiced law in Tuscaloosa, was a member of the Constitutional Convention of 1875, a state legislator from 1876-1892, and president of the Alabama Bar Association in 1892. He served as land commissioner for the University of Alabama from 1885-1895, and was a professor of law from 1888 until his death in 1895. See, Owen, History of Alabama, III: 748.

[35] McKenzie, “Farrah’s Future,” 127; and Sellers, History of the University of Alabama, 390.

[36] Van de Graaff completed his undergraduate work at Yale before attending law school at the University of Alabama. Sellers, History of the University of Alabama, 390. Van de Graaff also had political ambitions and served as a circuit court judge from 1915-1917 and a state representative from 1918-1922. McKenzie, “Farrah’s Future,” 127, n.19.

[37] McKenzie, “Farrah’s Future,” 127-128; and Sellers, History of the University of Alabama, 390. Ormond Somerville would further follow his father’s lead by serving as a justice on the Alabama Supreme Court in 1910 until his death in 1928.

[38] See Pruitt, “The Life and Times of Legal Education in Alabama,” 305-306; McKenzie, “Farrah’s Future,” 128.

[39] McKenzie, “Farrah’s Future,” 128.

[40] Pruitt, “The Life and Times of Legal Education in Alabama,” 307; McKenzie, “Farrah’s Future,” 129, 131. The first class to graduate under the new system was in 1899.

[41] Paul M. Pruitt, Jr., Penny Calhoun Gibson, “John Payne’s Dream: A Brief History of the University of Alabama School of Law Library, 1887-1980, With Emphasis Upon Collection-Building,” 15 The Journal of the Legal Profession (1990), 5.

[42] Acts of Alabama (1886-1887), 121-122.

[43] Pruitt, Gibson, “A Brief History of the University of Alabama School of Law Library,” 6; McKenzie, “Farrah’s Future,” 128; and Pruitt, “The Life and Times of Legal Education in Alabama,” 306.

[44] McKenzie, “Farrah’s Future,” 129; and Sellers, History of the University of Alabama, 391.

[45] McKenzie, “Farrah’s Future,” 130.

[46] Ibid., 130-131. Thorington officially remained on the law faculty until 1911, however, his active role ended with a leave of absence January 1, 1910. Also, see Owen, History of Alabama, IV: 1669.

[47] McKenzie, “Farrah’s Future,” 131.

[48] Ibid.

[49] Ibid., 132-133.

[50] M. Leigh Harrison, William M. Hepburn, University of Alabama Report to the Alabama Educational Survey Commission, School of Law (University, Alabama: [School of Law], 1944), 3-4.

[51] McKenzie, “Farrah’s Future,” 133; Pruitt and Gibson, “A Brief History of the University of Alabama School of Law Library,” 6; and “Buildings Housing the University of Alabama School of Law,” Special Collections, Bounds Law Library, “Scrapbook—One Hundredth Anniversary (1972).” Manly Hall was renamed Presidents Hall in 2020, and Morgan Hall was renamed English Building the same year by the university Board of Trustees.

[52] Wythe W. Holt, Jr., “A Short History of Our Deanship,” Alabama Law Review 25, no. 1 (Fall 1972): 165; Albert John Farrah: 1863-1944 Addresses, Papers, and Letters (Tuscaloosa: University of Alabama Law School Foundation, n.d.), 6.

 

In Memory of Cherry Lynn Thomas

Cherry Lynn Thomas (1951-2022) passed away on November 3rd of this year. She was a member of the UA Law Class of 1983. While a law student she was the recipient of the Thomas W. Christopher Outstanding Service Award. She passed the bar in 1982 and worked (1982-1983) as a librarian for the Alabama’s Supreme Court and State Law Library. Photograph of Cherry Lynn Thomas.From 1983 to 1991 Cherry was Director of the University of Alabama Law Library. While director, Cherry was an active member of the American Association of Law Libraries (AALL) and the Southeastern Association of Law Libraries (SEALL). In these capacities she served on committees and hosted meetings, including the annual SEALL conference of 1991.

Cherry was a fine scholarly bibliographer. Her most notable work (coauthored with Jean McCulley Holcomb) was Hugo Lafayette Black: A Bibliography of the Court Years, 1937-1971, 38 ALABAMA LAW REVIEW 381-499 (1987). In this work, Thomas and Holcomb provided biographical information and painstakingly listed pertinent articles, books, dissertations, theses, speeches and manuscripts. They also included annotated lists of Justice Black’s majority, dissenting, and concurring opinions. In its time, this work was a definitive bibliographic approach to Justice Black’s court career.

Cherry was forced into retirement for health reasons just as she was beginning to lead the Law Library toward automation of its cataloging and circulation services. Her legacy lived on for many years in the careers of the people she hired. The latter included Robert Marshall (variously Head of Reference, Acting Director, and Director) and Penny Calhoun Gibson (Public Services Librarian, Reference Librarian, and Interlibrary Loan Librarian). We all admired Cherry’s intelligence, her work ethic, and the courage with which she lived for more than three decades while battling her condition. Requiescat in pace.

M.H. Hoeflich, Notes from the Commonplace Book of a Legal Antiquarian

Michael Hoeflich holds degrees from Haverford College, Cambridge University and Yale Law School. He taught at the University of Illinois from 1980-1988, was dean of the Syracuse University College of Law from 1988-1994, and was dean at the University of Kansas School of Law from 1994-2000. Hoeflich is the author or editor of more than 15 books and 115 articles. 

M.H. Hoeflich, Notes from the Commonplace Book of a Legal Antiquarian (Clark, NJ: Talbot Publishing, 2021).

Everybody who loves printed books can remember one special moment when that love commenced—or perhaps a time when an affinity for books, already germinating, began to reveal itself definitively. For Mike Hoeflich, the revelation came when a beloved college professor let him examine a 17th-century volume of papal biographies. “In that moment,” he writes, “I was reborn as a bibliophile and collector of texts” (p. x).Image of Hoeflich book cover.

Few people can afford early modern books, but those of us who want to read will find a way to do so—and that is true of any category of print titles. Libraries and museums have existed since Classical times; there is a robust, mostly affordable market for out-of-print books; and of course there are now many titles, some of great age, available in one or another of the e-book formats, including hand-held book simulacra. But there is a problem that has been affecting all readers since the days of papyrus scrolls, and that certainly affects us all in these days of information overload. That is, how to remember what has been read?

Some of us try to remember by means of underlining, marginal notes, or highlighting. Some people may even construct “Memory Palaces.” But early modern readers—indeed, many readers well into the 19th century—preserved their reading pleasures by means of Commonplace Books. These were notebooks into which a reader copied excerpts of personal significance. These were typically chosen for their wisdom of sentiment, beauty of language, or pertinence to whatever the copier was thinking or doing. One could navigate one’s Commonplace Book(s) by means of mnemonic devices, personal indexes, marginal notations, or simply by reading over the entries at intervals. What remained when all the copying was done was a very personal document, from the physical look of the notebook, to the character of the handwriting, to the nature of the excerpts. All of these factors reflect the personality of the compiler across a span of time.

Mike Hoeflich, in this latest of his many books, has offered his readers—his friends, as he graciously calls us—a selection of a dozen or so excerpts from his Commonplace collection. One of the first (pp. 3-6) is by a poet styling himself George Coleman the Younger. His poem, titled “A Reckoning with Time,” was published in 1814. One stanza stands out to this reader:

For thou hast made me gaily tough;
Inured me to each day that’s rough,
In hopes of calm tomorrow; —
And when, old Mower of us all!
Beneath thy sweeping scythe I fall,
Some few dear friends will sorrow.

Another entry from Hoeflich’s books is an eighteenth-century essay (pp. 12-21) on “The Antiquity of the Laws of This Island,” a somewhat breathless romp through the Laws of the Britons, Romans, Saxons, Danes, and Normans. The author, like any good Enlightenment historian, seems to have made some things up as he went along. He concludes, though, that “the British laws were altered by the Romans; theirs by the Saxons; and theirs again much altered by the Danes, which mingled with some points of the Saxon law, and fewer of the Norman law, is the common law now in use” (p. 19).

An excerpt from The Comic Blackstone of 1846 (p. 37) also harks back to early medieval times, when the Court of Common Pleas had no fixed location. At that time, says the author, the court “had a van to carry the barristers’ bench, the judge’s easy chair, and the rostrum for the witnesses, from place to place; but when it [the court] became fixed, it made it worth the while of respectable people to study the law, which was not the case when the legal profession was nothing but a strolling company.”
Hoeflich also treats us to a look (pp. 25-27) at the menu of the Austin Law Club, which met at the Parker House in Boston on April 21, 1893. The Austin Law Club, he tells us, was an organization of Harvard Law graduates. Looking over the seven courses they consumed, it is clear that they had not taken vows looking toward ascetic or self-denying lives.

All in all, Mike Hoeflich has given us notable samples of his reading tastes down through the years. His choices in this collection are by turns witty, self-deprecating, satirical, and pointed. It is a pleasure to see, in this way, a lifetime’s reading in miniature. Mike’s Notes will surely please the strolling company of legal historians.

PMP


In Memory of David Ernest Alsobrook

David Ernest Alsobrook (1946-2021)

It is with great sadness that we announce the death of David E. Alsobrook at the age of seventy-five. A contributor to Litera Scripta, David was a consummate Public Historian. In addition to working as a supervising archivist at the Jimmy Carter Presidential Library in Atlanta, he was the founding director, successively, of the George H.W. Bush Presidential Library and Museum and the William J. Clinton Presidential Library and Museum. Photograph of David E. Alsobrook signing his book.Just last year, David reflected upon his long archival experience in a book titled Presidential Archivist: A Memoir (Mercer University Press, 2020). After retiring from the National Archives and Records Administration, David served as director of the Museum of Mobile from 2007 until his retirement in 2015.

David was a prominent Alabama historian. His finished his doctorate in history at Auburn in 1983. His dissertation “Alabama’s Port City: Mobile in the Progressive Era, 1896-1917” remains a fine example of urban history. His study Southside: Eufaula’s Cotton Mill Village and Its People, 1890-1945 (Mercer University Press, 2017) chronicled the difficult lives of millworkers while giving a human face to life and labor in a company town.

Such scholarship did not go unnoticed. David’s 2004 Alabama Review article on Mobile’s 1902 street car boycott won the Alabama Historical Association’s Milo B. Howard Award. His book Southside won the Association’s Clinton Jackson Coley book award in 2018. That year (2017-2018) he served as president of the Alabama Historical Association.

In addition to all of the above, David Alsobrook was the embodiment of what it means to be an Auburn person. As the first graduate of Auburn’s storied Archival Training Program, he sought to live up to Dr. George Petrie’s “Auburn Creed,” which begins: “I believe that this is a practical world and that I can count only on what I earn. Therefore, I believe in work, hard work.” On the other hand, several people who have commented on David’s passing remarked upon his affability and kindness.

See below for his Litera Scripta post titled “Jessie Gillis Parish: A Woman Voter of Barbour County, Alabama.”

 

Oliver Wendell Holmes, Jr., The Common Law

The following is another post derived from the Bounds Law Library’s recently acquired A.S. Williams III Collection.

Oliver Wendell Holmes, Jr, The Common Law (Boston: Little, Brown and Company, 1881). This is a first edition of this famous treatise. It is bound in dull red buckram, in excellent condition; the corners are essentially unbumped. The front pastedown endsheet has a bookplate of Robert B. Nason, an arte nouveau design of a woman standing in front of a crescent moon with a shield bearing the Harvard motto, “Veritas.”

Image of bookplate from The Common Law
Bookplate, The Common Law

The recto of the front free endsheet has a sticker, lower left, for “G.A. Jackson Law Books, 8 Pemberton Square Boston, Mass.” Also on this recto, penciled notes: “1st ed. of important Legal Treatise $450.00” followed by “28-6-1910.” No marks inside the text.

Oliver Wendell Holmes, Jr. (1841-1935) is one of our most famous Supreme Court justices. Portrait of Oliver Wendell HolmesHe served on the high court from 1902-1932, and secured renown as a defender of free speech; see his dissent in Abrams v. United States (250 U.S. 616, (1919). Holmes was likewise willing to allow states considerable leeway in their regulation of economic interests and public welfare.[1] Long-lived, handsome, and quotable by the yard, Holmes was for many people the very model of a Supreme Court justice. He is much less well-known as a legal scholar, having written only one original book, The Common Law.[2] But that one book, published when he was forty, has been to the study of jurisprudence what his opinions were to the evolution of case law.

The first page of Holmes’ treatise contains a line that has gone ringing down the years: “The life of the law has not been logic; it has been experience.” The rest of The Common Law contained Holmes’ brilliant if difficult historical treatments of crime, torts, property and contracts, all of which tend to show that the evolution of law has been in response to the pressures exerted by human beliefs, desires, and doings. But that one line was memorable and utterly revolutionary. For centuries—certainly since the decisions of the seventeenth-century jurist, parliamentarian and treatise-writer Edward Coke—learned lawyers had spoken of the law as a “science of reason,” a system of logic that has, from time to time, become entangled in scholars’ perceptions of Natural Law—law as derived from the law of God. Under this system, jurists applied their logical tools, mindful of the authority of precedents, and “discovered” what the law had to say. Holmes was having nothing to do with the circular logic of such Formalism. Rather he asserted, by implication and directly, that “judges make law.”[3]Image of title page from The Common Law

Indeed, The Common Law applied the philosophical principles associated with Pragmatism, and brought them into use within the halls of the legal academy; he also invited them to sit with him on the Bench. His writings and jurisprudence combined were precursors of what is known as Legal Realism, described by Judge Richard Posner as “the most influential school of twentieth-century American legal thought and practice.” In his book The Essential Holmes, Posner notes Holmes’ early exposure to the writings of English thinkers such as John Stuart Mill and James Fitzjames Stephen. He then declares that their ideas, operating through Holmes, “helped to make American thought more cosmopolitan and (paradoxically) to liberate American jurisprudential thought from slavish adherence to English models.”[4]  And to think—Holmes had written The Common Law before he ever sat as a judge!

Holmes’ biographers have made their bows to The Common Law. Liva Baker’s The Justice from Beacon Hill devoted a chapter to it, asserting that Holmes had “given the law a vitality it never before had possessed.”[5] More recently Stephen Budiansky has written that The Common Law was a “work of profound learning, and revolutionary, even shocking implications.”[6]Photo image of Oliver Wendell Holmes

The magisterial Mark DeWolfe Howe, on the other hand, viewed The Common Law as a very successful tour-de-force. He admits that it “was something far more important than a compendium of insights.” But as he considered Holmes’ transition from practitioner to Harvard law professor to judge of the Supreme Judicial Court of Massachusetts— all of which he accomplished in two years’ time, from 1881 to 1882—Howe concluded that “other traits of intellect and character than those which gave that book its power would have been called upon to produce a systematic work on legal history or legal philosophy.”

It may be worth noting that the status of Holmes’ treatise has been confirmed by the recent publication of Steven Alan Childress’ Annotated Common Law (New Orleans: Quid Pro Law Books, 2010). If great books initiate conversations—between readers, between authors and readers, between generations—The Common Law has “been in that number” for a long time.

PMP

[1] For the negative side of Holmes’ willingness to let states control public policy without interference on the grounds of “due process,” see Holmes’ opinion in Buck v. Bell (274 U.S. 200, 1927) , in which he upheld Virginia’s mandatory sterilization of the “unfit.”

[2] Holmes’ speeches and essays were also published. See Holmes, Collected Legal Papers (New York: Harcourt, Brace, and Co., 1921).

[3] Holmes’ comment on judge-made law is quoted in Stephen Budiansky, Oliver Wendell Holmes: A Life in War, Law, and Ideas (New York: W.W. Norton & Company, 2019), 177.

[4] Richard A. Posner, editor, The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions . . . (Chicago: University of Chicago Press, 1992), xi, xx.

[5] Liva Baker, The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes (New York: Harper Collins, 1991), 246-270, quoted passage at 258.

[6] Budiansky, op. cit., 10.

[7] Mark DeWolfe Howe, Justice Holmes: The Proving Years, 1870-1882 (Cambridge: Belknap Press of Harvard University Press, 1963), 280-283, quoted passages on 282.

In Memory of Marjorie Fine Knowles

Marjorie Fine Knowles, the first female dean of a Georgia law school and a nationally recognized advocate for women’s rights, died on Friday September 24. She was 82 years old.Image of Marjorie Fine Knowles

A New York City native who graduated from Smith College and Harvard Law School, Knowles served as an Assistant U.S. Attorney in the Southern District of New York and with the criminal section of the Manhattan District Attorney’s office. In 1970 she became executive director of Joint Foundation Support, “one of the first foundations to support groups involved in grassroots organizing to combat racism and poverty in the Deep South.”[1] In 1972 she married Tuscaloosa civil rights attorney Ralph Knowles,[2] whom she had met at Selma.

That year, Knowles became one of the first women to join the faculty of the UA School of Law. During her career at the School of Law, she was a role model and advocate for women and women’s rights on the campus and in the larger world. Dean Mark Brandon (UA Law, Class of 1978) was her student. He remembers her as an outstanding professor:

“Marjorie was a rigorous teacher (I know from personal experience).  Her courses ranged widely from evidence, to sports law, to conflicts, and to sex-based discrimination.  Her most important contributions, however, were to the causes of civil rights and especially the status of women.  Her influence was national, but she also had a profound impact ‘at home.’  In her time at Alabama, she helped to change the face and culture of the Law School, as the number of women studying law here increased almost six-fold.”[3]

Dean Knowles wrote many law review articles and other writings, but the one that probably had the most impact in Alabama was her Legal Status of Women in Alabama: A Crazy Quilt, 29 Alabama Law Review 427-516 (1978).[4] This pioneering work of scholarship was “the first comprehensive analysis of Alabama’s statutes affecting women”; moreover the article “became a blueprint for removing sexist provisions from the Alabama Code.”[5]

Dean Knowles served at the Law School from 1972 to 1978, when she took a leave of absence to serve the Carter administration, first as an assistant general counsel in the Department of Health, Education, and Welfare, and “soon afterwards as the first Inspector General of the U.S. Department of Labor.”[6]

In 1980 she and her family returned to Alabama, where they remained until 1986, when she accepted the Deanship of the Georgia State University’s College of Law. She was only the seventeenth woman to sit as Dean of a law school in the history of the United States. Knowles’ deanship lasted five years, during which Georgia State’s law school earned its accreditation from the American Bar Association—a landmark achievement. She continued to teach at Georgia State until 2011, and continued to be active in good causes thereafter.

During a very active career as a professor and administrator, Marjorie Fine Knowles took on many challenges. She was a key professor in developing a Women’s Studies curriculum at the University of Alabama, for example. She was an influential advocate, nationally, of the Equal Rights Amendment; and in 1975 she helped finance Gloria Steinem’s Ms. Magazine. She served on many boards and won an assortment of honors. Among the latter was her 1975 inclusion among the Ten Outstanding Young Women in America by the National Federation of Business and Professional Women. Georgia State University has honored Marjorie and Ralph Knowles by naming the College of Law’s Conference Center after them.

Marjorie Fine Knowles will be remembered warmly and respectfully for her excellence and impact as a teacher, administrator, scholar, and advocate for all that is best in us.

PMP

 

[1] This quote and much of the information above and below can be found in Dean Marjorie Fines Knowles’ obituary, which can be accessed at Marjorie Knowles Obituary – Sandy Springs, GA (dignitymemorial.com).

[2] Ralph Irving Knowles, Jr. (1945-2016) was a member of the Class of 1969, University of Alabama School of Law.

[3] Email from Dean Mark Brandon to author, October 4, 2021. The increase in women’s enrollment during one three-year period, according to Dean Knowles’ obituary, was from 13 to 70.

[4] She followed up the 1978 article with her Legal Status of Women in Alabama, II: A Crazy Quilt Restitched 33 Alabama law Review 375-406 (1982).

[5] This quote is from Dean Knowles obituary; see supra, note 1.

[6] Ibid.

The Williams Collection of Historic Law Books

The following is the first of several posts that will explore selected titles from a collection of law and law-related books donated by the family of A.S. Williams, III. The Williams Historic Law Book Collection consists of seventy volumes that date from the eighteenth, nineteenth, and early twentieth centuries. They are in their original bindings, and many of them have penciled notes on the margins and flyleaves.

These lovely books were donated to the Bounds Law Library by the family of Birmingham insurance executive and noted bibliophile A.S. Williams, III. Williams’ magnificent collection of more than “20,000 volumes and pamphlets published between the late-seventeenth century and 2009” is a major holding of the Hoole Special Collections Library.[1] The family’s gift to the Bounds Law Library consists, as noted above, of a legal collection assembled by Williams’ father-in-law, the late G.G.W. Hoover. Hoover was himself an insurance executive and a man who had a rare appreciation of the printed sources of the common law.[2] A few titles from this collection are briefly described below, in alphabetical order by author.

James Barr Ames, A Selection of Cases on Pleading at Common Law (Cambridge, MA: John Wilson & Son, 1875). This is one of the first “casebooks” produced at Harvard during the deanship of Christopher Columbus Langdell. Ames (1846-1910) was one Harvard’s leading professors.[3] The theory behind the “casebook method” was that students, by reading properly arranged cases, would be able to deduce the principles and rules of law for themselves. Since the late 19th century—indeed, today—the casebook method has prevailed in American law schools. This copy of Ames contains numerous (and voluminous) marginal notes in a late 19th-century hand.

Charles W. Bacon, et al., The American Plan of Government, 4th edition (New York: G.P. Putnam’s Sons, 1921). Bacon (1856-1938)[4] was a New York lawyer and an instructor in Political Science at the City College of New York.[5] He authored several works on the U.S. Constitution.

This volume contains notes on the front pastedown leaf and front free flyleaf, as well as underlining and other annotations in the text. These are in the hand of the book’s early owner William H. Wilson. One of Wilson’s flyleaf notes tells us that the book was purchased on February 6, 1952, at Claitor’s Book Store in Baton Rouge, Louisiana. Claitor’s is a longstanding bookstore, publishing house, and landmark of Louisiana’s world of books. Several of the titles in Bounds’ Williams Collection bear Claitor’s distinctive blue and white sticker.

James M. Beck (1861-1936) was a Philadelphia native and distinguished practitioner of law, admitted over the course of his career to the bars of Pennsylvania, New York, and England (he was made a bencher of Gray’s Inn in 1914). During World War I, Beck wrote articles and gave addresses against German aggression. In the 1920s he served as Solicitor General (1921-1925), appointed by President Warren G. Harding. Then he was elected to Congress as a Republican from Pennsylvania, serving from 1927 until his resignation in 1934. Beck resigned because he considered that Congress had become a “rubber stamp” for President Franklin D. Roosevelt’s New Deal. Beck was a leading political conservative, whose books reflected his concern for the rights of the states.[6]

The A.S. Williams collection at Bounds includes three titles by James M. Beck, as follows:

(1) The Constitution of the United States: Yesterday, Today—and Tomorrow? Foreword by President Calvin Coolidge (New York: George H. Doran Company, 1924). Beck’s Wikipedia article says of this title that “It was a best-seller, going through seven printings within ten months. A special edition of 10,000 copies, with a foreword by President-elect Coolidge, went to schools and libraries across the country.” This copy contains many handwritten notes (mostly in pencil) on the recto of the front free flyleaf and at various points in the margins of the text.

(2) May It Please the Court, O.R. McGuire, editor (New York: Macmillan, 1930). This title consists of a number of speeches, articles, and addresses, some historical and some political. With the exception of a penciled date of the recto of the front free flyleaf, it appears to be unmarked.

(3) Our Wonderland Of Bureaucracy (New York: Macmillan, 1932). This critique of the complexities of modern government (published just before the advent of the New Deal) contains a good deal of heated language. On socialist leaders (p. 85), Beck says that their message appeals “particularly to the lower intelligence, which fears its own capacity and sub-consciously favors a dictatorship.” A slim notepad laid in the book contains several brief notes, including a quote from Aristotle: “The laws have no lasting vitality save in the spirit of the people.”[7]

Louis B. Boudin (1874-1952), Government by Judiciary, 2 volumes (New York: William Godwin, Inc., 1932). Boudin was a member of a group that was surely underrepresented in this collection. His Wikipedia page describes him as “a Russian-born American Marxist theoretician, writer, politician, and lawyer,” and says that he is chiefly remembered for Government by Judiciary. This work counters the views of Justice Oliver Wendell Holmes. Specifically, Boudin takes Holmes to task for agreeing with Chief Justice Marshall that the U.S. Supreme Court has the power to declare laws unconstitutional. The work’s annotator (who favored red pencil) was likewise critical of this doctrine. He wrote “No! No!” opposite a passage setting forth Marshall’s view of the matter. This volume shows that legal populism was alive in Alabama, or wherever the annotator happened to live.

These volumes contain a number of marginal notes in red pencil. In many instances, the annotator was quite critical of Boudin’s interpretations. At the top of page 25, he asks: “How could [his] implication make both legislature and Supreme Court both supreme!!” On page 169, the annotator responds to the notion that Federalism or Antifederalism was “a matter of geography” by saying tersely: “No, never was.”

By the time he got to Chapter 33, on “Due Process of Law and Trial by Jury,” the annotator was taking marginal notes in a nearly auto-written mode. In the margin of page 357 he writes: “Trial by jury a good thing.” A few pages on, he summarizes what he has just read with the comment: “All silly.” On page 361, when Boudin refers to grand jury deliberations as “part of trial by jury,” the annotator comments: “But not an essential part.” On page 363, in response to another passage discussing juries, he writes: “But are not rights preserved as well by a jury of 8 as by 12?” Two pages later he attacks again, then relents: “What! Yet maybe so.”

Henrici de Bracton, De Legibus et Consuetudinibus Angliae, edited by Sir Travers Twiss, 6 Volumes (London: Longman & Co., 1878). Volume I contains an Introduction, pp. [ix]-lxvi, and a detailed “Index,” pp. lxxvii-cv. Similar detailed indexes head up the main text in each of the six volumes. The main text is presented throughout the work in Latin and English on facing pages. A more conventional index is presented after the main text in each of the volumes.

Each volume contains the bookplate of Seneca Haselton (1848-1921), a notable lawyer, mayor of Burlington in Vermont, Minister Plenipotentiary to Venezuela (1894-1895), and member at different times of the Vermont State Supreme Court.[8]

Henrici de Bracton[9] (c. 1210-1268) was a Devonshire man who served as clerk to the great royal judge William of Raleigh, Henry III’s trusted advisor and Chief Justice. By most modern accounts, the treatise known as “Bracton” was compiled in the 1220s or 1230s by Raleigh and passed along to Bracton, who put it in its final form. Bracton was a learned man in his own right, having studied Civil Law at Oxford. Indeed, the treatise De Legibus is remarkable for its efforts to reconcile common law and the ius commune, including Roman and canon law. It is equally notable for its use of case notes (of over 400 cases) to illustrate points of pleading and doctrine. It was the first English treatise to do so. The great medieval historian Frederic William Maitland discovered Bracton’s “Notebook.” This was a personal reference work containing notes of some 2,000 cases. Maitland published an edited edition of it in 1887.[10]

De Legibus opens with a much-quoted passage on the needs of a king:

“These two things are necessary for a king who rules rightly, arms forsooth and laws, by which either time of war or of peace may be rightly governed, for each of them requires the aid of the other, in order that on the one hand the armed power may be in security, and on the other the laws themselves may be maintained by the use and protection of arms.” [I: 2][11]

Maitland called Bracton’s De Legibus “the crown and flower of English jurisprudence.”[12] Given the decades that it took to put this work together, the brilliant legal minds that worked on it, and the universal jurisprudence to which it aspired, the treatise has earned such praise.

Thus endeth the first installment concerning our A.S. Williams Collection titles. This selection has contained, among other things,

(1) An early casebook, one of the foundation-stones of twentieth-century legal education.

(2) Works by a prominent anti-New Deal lawyer.

(3) An important work by a notable “Marxist Theoretician.”

(4) A gleaming jewel of the Middle Ages.

What more could one ask for?

PMP

 

[1] For a description of Hoole’s A.S. Williams III Americana Collection, see the guide at https://guides.lib.ua.edu/williams-collection.

[2] Mr. Hoover died in 1976 at the age of 85. Mr. James Williams furnished Mr. Hoover’s obituary, dated June 9, 1976 (newspaper unknown).

[3] For Ames’ Wikipedia article, go to https://en.wikipedia.org/wiki/James_Barr_Ames.

[4] For Bacon’s obituary, see New York Times, November 11, 1938.

[5] For a scathing review of this title, see 31 Political Science Quarterly 626-628 (Dec., 1916).

[6] For Beck’s Wikipedia article, go to https://en.wikipedia.org/wiki/James_Barr_Ames.

[7] Our Wonderland of Bureaucracy, x.

[8] See Wikipedia, “Seneca Haselton,” https://en.wikipedia.org/wiki/Seneca_Haselton.

[9] Sometimes spelled De Bratton.

[10] See in Bounds Law Library, at KD600 .B73 1887.

[11] The quote is even more sonorous in a more recent translation of Bracton. See George E. Woodbine, editor, On the Laws and Customs of England, Samuel Thorne translator, 4 volumes (Cambridge: Harvard University Press, 1968), thusly: “To rule well a king requires two things, arms and laws, that by them both times of war and of peace may rightly be ordered. For each stands in need of the other, that the achievement of arms be conserved [by the laws], the laws themselves “preserved by the support of arms.” The Woodbine/Thorne Bracton is available at the Bounds Law Library (Reserve) at KD660 .B7.

[12] See the Ames Foundation website, at https://amesfoundation.law.harvard.edu/digital/Bracton/bracton.html.

BRUTUS, CASSIUS, JUDAS, AND CREMUTIUS CORDUS: HOW SHIFTING PRECEDENTS ALLOWED THE LEX MAIESTATIS TO GROUP WRITERS WITH TRAITORS

The editors of Litera Scripta are aware that we live in troubled times. At home we face political divisions more intense than any since the American Civil War. Meanwhile, across the globe, authoritarian regimes have taken a page from George Orwell and turned disinformation into an evil form of art. The editors are confident, however, that there is very little that is new under the sun. That said, we should study the past for clues to present predicaments; and one cannot do better in this regard than to study the legal history of imperial Rome. There we see the “cult of personality” carried to its highest degree, resulting in the erosion—sometimes gradual, sometimes very rapid—of freedoms that Romans had taken for granted. This erosion of rights affected the state’s legitimacy in the eyes of its citizens. Eventually it affected the state’s ability to function.

These themes are present in Hunter Myers’ “Brutus, Cassius, Judas, and Cremutius Cordus: How Shifting Precedents Allowed the Lex Maiestatis to Group Writers with Traitors.”[1] This fine work of scholarship shows how the Roman concept of Maiestas (the “majesty of the state”) developed over time. It concludes with persuasive evidence that the Emperor Tiberius[2] twisted that element of Roman law to his own advantage—in the process corrupting the Senate, the courts, and the public itself. More dramatically, Mr. Myers shows us that Tiberius presided over his own descent into corruption—in his case marked by hypersensitivity to criticism, openness to malicious prosecutions, a thirst for vengeance, and other aspects of cold-hearted paranoia.

Hunter Myers is a member of the Class of 2022, University of Alabama School of Law and the forthcoming Editor-in-Chief of the Alabama Law Review.

[1] Honors Thesis, University of Mississippi, 2018.

[2] Ruled 14-37 AD.

 

BRUTUS, CASSIUS, JUDAS, AND CREMUTIUS CORDUS:

HOW SHIFTING PRECEDENTS ALLOWED THE LEX MAIESTATIS TO GROUP WRITERS WITH TRAITORS

By

Hunter Myers

A thesis submitted to the faculty of The University of Mississippi in partial fulfillment

of the requirements of the Sally McDonnell Barksdale Honors College.

Oxford, Mississippi, May 2018

Advisor: Professor Molly Pasco-Pranger

Reader: Professor John Lobur

Reader: Professor Steven Skultety

© 2018

Hunter Ross Myers

ALL RIGHTS RESERVED                                 

ACKNOWLEDGMENTS

Dr. Pasco-Pranger,

            For your wise advice and helpful guidance through the thesis process

Dr. Lobur & Dr. Skultety,

            For your time reading my work

My parents, Robin Myers and Tracy Myers

            For your calm nature and encouragement

Sally-McDonnell Barksdale Honors College

            For an incredible undergraduate academic experience

ABSTRACT

In either 103 or 100 B.C., Saturninus invented a concept known as Maiestas minuta populi Romani (diminution of the majesty of the Roman people) to accompany charges of perduellio (treason). Just over a century later, Tiberius used this same law to criminalize behavior and speech that he found disrespectful. This thesis offers an answer to the question as to how the maiestas law evolved during the late republic and early empire to present the threat that it did to Tiberius’ political enemies. First, the application of Roman precedent in regards to judicial decisions will be examined, as it plays a guiding role in the transformation of the law. Next, I will discuss how the law was invented in the late republic, and increasingly used for autocratic purposes. The bulk of the thesis will focus on maiestas proceedings in Tacitus’ Annales, in which a total of ten men lose their lives. The most striking trial that will be investigated is the one involving Cremutius Cordus, who praised Brutus and Cassius, referring to them as the “Last of the Romans.” However, does this make him a traitor who belongs in Dante’s ninth circle along with Brutus, Cassius, and Judas?

TABLE OF CONTENTS

Prologue

Roman Precedent and Exempla

The Application of Roman Precedent

Precedent in the Late Republic

Augustan Exempla

The Rewriting of Precedent under Tiberius

Inventing Maiestas

Origins of the Law – Perduellio

A Descendant of Perduellio – Maiestas

Two Test Cases: Caepio and Norbanus

From Varius to Sulla

Caesar’s Law and Motivation

Maiestas in Tacitus’ Annales

Examining Tacitus

Maiestas and Augustan Precedent in The Annales

Two Preliminary Tests Under Tacitus

Marcellus

Appuleia Varilla

Germanicus and Gnaeus Piso – Maiestas Turns Deadly

The Creep of Maiestas and Informers

Two Proceedings in 22 A.D., Maiestas Targets the Powerful

Gaius Silius, Calpurnius Piso, and the Protection of Informers

Cremutius Cordus, The Apex of Tyranny

The End of the Reign of Tiberius

Epilogue

Bibliography

 

Prologue

That upper spirit,

Who hath worst punishment, so spake my guide,

“Is Judas, he that hath his head within

And plies the feet without. Of th’ other two,

Whose heads are under, from the murky jaw

Who hangs, is Brutus: lo! How he doth writhe

And speaks not. The other, Cassius, that appears

So large of limb. But night now reascends;

And it is time for parting. All is seen. (Inf. XXXIV, 56-64)[1]

Dante vividly describes the ninth circle of hell, an icy section reserved for those who betrayed others in their life on Earth. A person who committed this type of act was, and still is today, truly considered the worst of the worst. Why is the concept of betrayal such a powerful one? Could it be due to the premeditation required to betray another person, or perhaps one imagines the damage that could be done if they themselves were betrayed?

Image of Lucifer half-submerged in ice.
Lucifer half-submerged in ice

Whatever the cause may be, the human race seems to be fascinated with the concept, as stories of treachery are as old as time itself. In Genesis Cain killed his own brother Abel, which constituted the first murder and first betrayal in the Abrahamic tradition.[2] When the Spartans held back the Persians at the “hot gates” of Thermopylae, they lost their lives due to the betrayal of Ephialtes (Hdt. 7.213).[3] Caesar was stabbed to death close to the Theatre of Pompey by a group of senators, led by the trusted Brutus and Cassius (Plut. Vit. Caes. 66).[4] Some seventy years later, Judas would betray Jesus, leading to his crucifixion.[5]

Around the same time as Judas’ actions, Cremutius Cordus was accused of treason for his written account of Roman history. His accusers specifically pointed at one phrase in which he labeled Brutus and Cassius as “the last of the Romans”. Knowing that his guilt and execution were certain, Cremutius Cordus took his own life. However, is there any resemblance between his actions, and those of Brutus, Cassius, and Judas?

Dante places the unholy triad of Brutus, Cassius, and Judas in the center of his Inferno, eternally trapped in the jaws of Lucifer himself. Their treason is inarguable, as Brutus and Cassius directly participated in Caesar’s murder, and Judas handed Jesus over to the authorities who despised Jesus. They all betrayed the leaders of their time, one being secular, the other being spiritual. Brutus and Judas both betrayed a close friend. In virtually every society that has ever inhabited the Earth, treason is one of the worst possible offenses, and one that both the government and the populace will not tolerate. This sentiment is what allowed the Roman charge of maiestas minuta populi Romani (diminution of the majesty of the Roman people) to evolve from an accompaniment to a treason charge to a forced suicide preceding, or a death sentence following, a show trial under the emperor Tiberius. Saturninus, a tribune of the plebeians, originally proposed the law to prosecute people who he believed had diminished the majesty of the Roman people. However, as Rome shifted from Republic to Empire, especially under Tiberius, the law became a convenient tool to prosecute, and execute, anyone at the whim of the emperor. Eventually, the maiestas law extended to persons who used contentious words, such as Cremutius Cordus. The maiestas law labeled speech as sedition, turned writers into traitors, and led to the death of many who dared to use the wrong words.

 

Recent Acquisitions: Six Ledger Sheets from the Circuit Court of Perry County, Alabama, February 11-19, 1878; Documenting Criminal Court Fees Certified by Alabama Probate Judge Porter King

This post by Rodney Lawley is an addition to our recent acquisitions. Lawley works with Litera Scripta editors as a research assistant in the special collections and archives of the Bounds Law Library.

The work of Porter King, a prominent nineteenth-century lawyer, state legislator, and businessman from the State of Alabama, is featured in the latest acquisition of the John C. Payne Special Collections of the Bounds Law Library. The Judge Porter King Ledger is a six-page legal document detailing criminal court fees issued by the Court of Perry County, Alabama (February 11-19, 1878).Image of Porter King ledger.

Judge King was born April 30, 1824, in Perry County, Alabama, and was the son of a wealthy Alabama plantation owner. After attending the University of Alabama and Brown University prior to 1843, King studied law under the tutelage of Colonel Thomas Chilton in Marion, Alabama. He began his law practice in 1845 and was elected to the state legislature for a single term in 1847.

Upon completing his term, King practiced law in Marion, Alabama, and he was subsequently elected as an Alabama Circuit Court Judge in 1850. King served the state in this capacity for fifteen years, interrupted only briefly by a one-year command of an Alabama Civil War regiment. In 1865, King was unseated from the Circuit Court by Governor Lewis E. Parsons, a provisional official appointed by President Andrew Johnson.

Following his removal, King applied his talents to business and served in many important roles, including director of the insurance company Central City, the Commercial Bank of Selma, and as president of the Selma, Marion, and Memphis Railroad.

King was later appointed as Alabama Probate Judge in 1877. It was during this short two-year term that he signed the ledger documents acquired for this collection. Although King was a probate judge during this period, the court fees levied in these documents are based upon criminal court convictions in cases such as murder, burglary, and affray. This action is supported by The Code of Alabama 1876 directing probate judges to act as the ex officio judge of a county court. It is with such legal warrant that Judge King executed the fee judgements recorded in this collection.

Although King’s service as probate judge was his last role on the bench, he is remembered fondly in an 1890 Birmingham Daily News article referring to King as “one of the best judges the state has ever had.” The article continued this acclaim by adding, “For the last thirty years he has been the most prominent man in the state.”

Documents within the Judge Porter King Ledger are directed to local sheriffs and constables and describe fees and costs pertaining to the issuance of writs, the serving of subpoenas, and other court actions that require public funding.

Image of Porter King ledger.One such document describes the court’s charge of twelve dollars and eighty cents for services provided in administrating a burglary charge. In this case, ten cents per mile was billed to the defendant for guard services required during his incarceration. Similarly-rich detail is provided for other court decisions, including conviction-related fees for the quasi-anachronistic charge of “carrying concealed brass knuckles.”

Judge Porter King died January 3, 1890, in Atlanta, Georgia, after “suffering about a month with a dropsical affection.” The John C. Payne Special Collections is pleased to present this representation of his historically-significant work.

Rodney Lawley

Sources

“An Alabama Jurist.” Birmingham Daily News. January 3, 1890, 6.

Owen, Thomas McAdory. History of Alabama and dictionary of Alabama biography. Volume 3. Chicago: S.J. Clarke Pub. Co., 1921. See 3:982 of the 1978 reprint by The Reprint Company, Publishers.

State of Alabama. The Code of Alabama 1876. “County Courts,” §719, 339.

 

In Memory of David Robb, Gentleman and Scholar

The following is an obituary of David Robb (1937-2021), a scholar who made use of our Frank M. Johnson materials and visited the John C. Payne Special Collections facility on more than one occasion.

David Metheny Robb, Jr. was born on April 12, 1937 in Hennepin County, Minnesota, and died on March 5th at Huntsville Hospital due to complications from COVID-19. David Robb and his wife Frances Osborn Robb are well-known in Alabama for their work in museums and for their efforts in historic preservation. Their joint projects included a finely executed display on Judge Frank M. Johnson, Jr. in the Middle District of Alabama Federal Courthouse in Montgomery, and the conversion of Congressman Carl A. Elliott, Sr.’s house in Jasper into a museum.

David Robb graduated from Episcopal Academy in 1955, and from Princeton University in 1959, where he majored in art history and developed a lifelong love of the graphic arts, printing, and travel. He served as a Naval Air Intelligence Officer on the aircraft carrier USS Oriskany for three-and-a-half years. On leaving the Navy, he worked as curator for noted collector and philanthropist Paul Mellon. After he married Frances Osborn Robb of Birmingham, they attended Yale University where they received Master of Arts degrees in art history.

Robb then received a Ford Foundation Fellowship at the Walker Art Center in Minneapolis. In 1969, he was appointed founding curator at the new Kimbell Museum in Fort Worth, Texas and moved up the ranks to Acting Director in 1979. In 1983 Robb was appointed director of Telfair Academy in Savannah, Georgia, where he also oversaw two historic buildings, Telfair Academy and Owens-Thomas House. In 1985 he was appointed director of the Huntsville Museum of Art. While there he organized several initiatives, including the planning of a new stand-alone building for the museum. He retired in 1995, taking on special projects, many with Frances, and traveling in England and France.

Since then, Robb presented papers at professional meetings, published in Alabama Heritage magazine, and served on state boards, including the Alabama Historical Association and the Friends of the State Archives. David Robb will be buried at Maple Hill Cemetery in Huntsville, Alabama. Donations in his memory may be made to the Alabama Historical Association and the Alabama Department of Archives and History.

The editors of Litera Scripta offer their sincere condolences to Frances Robb and salute the memory of David Robb, gentleman and scholar.