Author: specialcollections

American Bar Association’s Diamond Jubilee 3¢ Stamp with Commemorative Cachet

Litera Scripta welcomes this post from colleague and Legal Research Librarian, Matthew Neely, who donated the Alabama American Bar Association’s Diamond Jubilee 3¢ Stamp to our collections. Matthew discovered this stamp at a local consignment shop while on vacation in Pawhuska, Oklahoma.

American Bar Association’s Diamond Jubilee 3¢ Stamp with Commemorative Cachet

This stamp is an American Bar Association’s Diamond Jubilee 3¢ Stamp with a commemorative cachet. A First Day Cover is an envelope bearing a stamp canceled on the date the stamp was first available for postal use.  In the United States, stamps are traditionally placed on sale at a site designated as the official First Day Post Office, often at a temporary postal substation created solely to sell the First Day stamps.Photograph of ABA envelope and stamp. Usually, a ceremony is held to dedicate the new stamp. The stamp then goes on general nationwide sale the following day. Many prominent stamp dealers and first-day cover servicers have special commemorative illustrations and captions printed on the envelopes. These commemorative illustrations are known as cachets.

On August 24, 1953, the ABA stamp was unveiled at the Statler Hotel in Boston, Massachusetts. This historic event was marked with speeches, music, a radio broadcast, and a special presentation of the stamp to then ABA President, Robert Storey. The stamp’s release was momentous, warranting announcements in the New York Times News of the World of Stamps column[1] and Time Magazine.[2]

Photograph of stamp detail.The stamp depicts part of the frieze on the walls of the U.S. Supreme Court, which depicts four figures: Wisdom, Justice, Divine Inspiration, and Truth. The cachet depicts Lady Justice with her scales and shield.

Readers who wish to learn more about stamps, commemorative cachets, and stamp collecting generally can consult the Kenmore Stamp Company’s website.[3]

[1] Kent B. Stiles, NEWS OF THE WORLD OF STAMPS; American Bar Group’s Diamond Jubilee Stamp Expected in August, The New York Times, Mar. 29, 1953, https://www.nytimes.com/1953/03/29/archives/news-of-the-world-of-stamps-american-bar-groups-diamond-jubilee.html.

[2] THE LAW: Diamond Jubilee, Time, Sep. 07, 1953, https://content.time.com/time/subscriber/article/0,33009,818790,00.html.

[3] What is a First Day Cover, https://www.kenmorestamp.com/first-day-cover.

Farrah Hall Benches Exhibit

FARRAH HALL BENCHES

Photograph of Farrah Benches Exhibit.
Farrah Benches Exhibit

From the 1927 dedication of Farrah Hall as the new home of the University of Alabama’s law school until its relocation to the Bryant Drive campus in 1978, University of Alabama law students attended classes seated on these signature benches.

Intended to inspire students to appreciate the historical foundations of American law, the benches evoke a sense of tradition one feels when imagining Sir William Blackstone teaching law at Oxford in 1753 or notions of the English Inns of Court.

The Farrah Hall Benches Exhibit can be viewed in person at the Bounds Law Library, study room 207.

A Small Reception in Westminster

The following post features an essay by 2023 UA Law graduate, Marshal Trigg, who is currently a nonprofit attorney in Washington, D.C.

Among legal historians there is a long-standing controversy over whether (or how much) of Roman law was “received” into the Common Law. Marshal Trigg’s “A Small Reception” surveys the development of Roman Law and Canon Law in the middle ages, and shows the influence of the Roman legal concepts on such innovations as Henry II’s “Assize of Novel Disseisin” and also on the works of such English jurists as Ranulf de Glanvill (d. 1190) and Henri de Bracton (1210-1268). By the 14th century, elements of Roman law had taken root in English law, notably in the development of the Court of Chancery. Chancery, in turn, was a feature of English law that was transplanted successfully to the new world.  Alabama’s Chancery Courts, for instance, were active into the twentieth century (Alabama Code of 1907, §§ 3042 ff.). That alone makes the history of “reception” part of our own legal heritage.

A Small Reception in Westminster

by Marshal Trigg

  1. Introduction

Civil law and common law jurisdictions differ in many important respects. A chief difference is the matter of inheritance: where civil law descends ultimately from the Roman legal tradition, common law is plainly derived from English tradition. Where the other nations of Europe received the Roman law, England went its own way. Still, scholars have long debated the question of a possible “reception” of Roman law in England. The question itself requires some unpacking: what constitutes “reception,” or “Roman,” or even “law”? For the purposes of this discussion, each of these terms will be considered in a broad sense. Thus, “reception” will be discussed as a matter of degree of influence, “Roman” will span the range from original Roman texts to later derivative sources such as the canon law, and “law” will encompass an expansive sweep of legal society, principles, and pedagogy. Once these definitions are applied and appropriate inquiries are conducted, it becomes clear that England underwent a reception of its own.

Goethe supposedly compared the Roman civil law to a duck: “Sometimes it is visible, swimming prominently on the surface of the water; at other times it is hidden, diving amid the depths. But always it is there.”[1] Yet if all Romans are ducks, not all ducks are Roman, and one occasionally might find a strange cryptid bobbing along the Thames. Here then, we must call on the mighty taxonomizing powers of the legal historian.

  1. Early Antecedents

Perhaps any discussion of an English reception of Rome should take care not to elide the fact that Britain, at one point in its antique past, was quite literally subject to Roman jurisdiction as an imperial province.[2] Far from some forgotten, far-flung outpost, the island was studded with prestigious Roman courts and officials, and Roman jurists of the second and third century A.D. discussed British cases.[3] Could this early acquaintance have sown the germ of a distinctly Latin legal mode surviving the subsequent displacement via Anglo-Saxon dominion? Certainly, these Germanic settlers left no Roman institution unrazed.[4] It is possible yet that the Germanic newcomers absorbed certain Roman customs and thinking from the native British. The scant written laws from the early Saxon period would seem to discourage examination, though scholars have attempted it.[5]

However, this level of speculative inference strains the bounds of our inquiry. It is enough to say that Rome made its second contact with Britain in 597 when Pope Gregory I sent St. Augustine (“the second of that name who attained to ecclesiastical celebrity”) to reintroduce Christianity to its population.[6] Consequently, the Kentish king Æthelberht and ten thousand of his subjects adopted the Roman religion.[7] In the Venerable Bede’s telling, Æthelberht shortly after set in writing the first Kentish law code juxta exempla Romanorum (“according to the Roman mode”).[8] This may appear at first a confusing observation, as the code betrayed little direct Roman influence and in truth evinced a great deal of Frankish influence instead.[9] Rather, the very fact of providing a written legal code signified in itself a dramatic step toward Romano-Christian enlightenment.[10]

Even so, a proper Romanist would find much lacking in the brief Kentish law code. A representative example is reproduced below:

  • 10: If someone lies with one of the king’s female slaves, he shall pay as compensation 50 shillings.
  • 11: If she is a corn-grinding slave, he shall pay as compensation 25 shillings. If she be of the third rank 12 shillings.[11]

Thus, the much-vaunted Code of Æthelberht could fairly be described as something like a glorified penal code resting on the vast edifice of an unwritten customary law.[12] Nevertheless, it was an important beginning. In the following centuries, the study of Roman law would be nurtured in cathedral schools like that of York.[13]

Around the year 900, Alfred the Great, King of the Anglo-Saxons, assembled many old English laws and roughly synthesized them into a Mosaic framework.[14] In a prologue, Alfred asserted a continuity bridging international church canons and secular English law: “[M]any synods assembled throughout the world… Then in many synods they ordained the penalty for many human misdeeds, and in many synod-books wrote here one regulation, there another.”[15] If the legal orientation of the developing English kingdoms had been grossly Teutonic and provincial up to this point, here it was becoming Christian and, however slightly, cosmopolitan, i.e., moving toward romanitas.

III. Of Normans and Romans

The triumph of the Normans in the Battle of Hastings in 1066 represented in many respects a significant point of departure in the English realm, not the least of these being the centralizing tendencies of Norman administration. Among many reforms, William the Conqueror wrested the ecclesiastical causes from the old Saxon hundred courts and assigned jurisdiction instead to the “canones of the catholic church” to be administered by the decidedly romish ecclesiastical courts.[16] Centralized royal courts were soon established,[17] and these courts were generally staffed by men possessing a clerical background and a grasp of Latin.[18]

Near the same time, in the latter half of the eleventh century, interesting developments were brewing on the Continent. In 1054, the Christian church was beset by a schism between its Roman and Byzantine centers.[19] Subsequently, the Western church elected to substantially aggrandize the political and legal powers of the Vatican, resulting ultimately in “the first modern Western legal system”.[20] Prior to the late eleventh century, “law” did not yet exist as a distinct body of jurisprudence plainly distinguishable from prevailing customs and institutions.[21] This state of affairs was overturned rapidly in the late eleventh and early twelfth centuries, significantly as a response to Pope Gregory VII’s, assertion of papal supremacy in 1075.[22] By his declaration of legal supremacy over all of Christendom, the path to a universal system of law was laid.[23] Thus the Roman Catholic Church embarked on an ambitious project to systematize its canon law as a set of ordered principles, spurring the creation of the first law schools in western Europe.[24]

Lacking much in the way of satisfactory materials, these schools drew substantially on the freshly rediscovered Digest of Justinian, the compiled laws of that sixth-century Eastern Roman emperor.[25] Knowledge of Roman law had already been available, but the Digest was set apart from other sources by virtue of being a comprehensive statement of the law.[26] Still, the bare text of the Digest did not expressly establish a general theory of law or politics.

Emperor Justinian and his court.
Emperor Justinian and his court

It was the task of the glossators, those juristic assimilators of the old Roman law, to pore over the ancient laws while extracting widely applicable principles.[27] It was in this way that the new law schools set out to reconstruct the science of the Roman law. The same sort of exegesis would come to be applied to the canon law, drawing on sources ranging from Roman law, church canons, papal curia materials, biblical scripture, and contemporary theologians.[28]

Canon law came into its own with the publication of Gratian’s Decretum near 1140, an authoritative collection of canon law compiled and glossed with the intent of reconciling apparent contradictions.[29] By the middle of the twelfth century, law students and teachers were divided into two groups, canonists, who focused their studies chiefly on the canon law, and civilians, who erred more strongly on the side of the Roman civil law.[30] Roman law, not being the positive law of any institution in medieval Europe, was often referred to as “the handmaiden of canon law”.[31] The two disciplines would remain closely connected, as civil law became “theologized” and canon law became “Romanized”.[32] This developing romano-canonical jurisprudence would come to be known as the ius commune, or “common law” of Europe.[33]

Desk and Chair Set from the Old Alabama Senate Chamber

The editors of Litera Scripta would like to announce a unique new addition to our collections. As part of a recent donation, we have installed an exhibit that features a desk and chair set from Alabama’s old senate chamber. The Alabama senate desk and chair exhibit is located at the entrance to our John C. Payne Special Collections Reading Room.

Desk and Chair Set from the Old Alabama Senate Chamber

The Alabama state senate desk and chair were purchased by former Alabama state senator Gary L. Aldridge. The sets were offered to sitting senators at the time that they were removed from the Senate Chambers at the state capitol in 1985.

Photograph of Aldridge desk and chair.Gary Aldridge was a 1978 graduate of the University of Alabama School of Law who died in a 1998 rafting accident in Alaska at age 47. His widow, Marsha White Aldridge said of Aldridge, “throughout his professional and public career Gary truly dedicated himself to making sure the law worked for everyone.”[1]

Abstract painting titled, "blue enso."
“blue enso”

At the time of his death, Aldridge practiced law in Birmingham with a concentration in class action and personal injury litigation. He previously practiced law in Decatur, Alabama and served as a municipal judge in Hartselle, Alabama. Aldridge was elected to the Alabama state senate in 1982. As senator, he co-sponsored the “Martin-Aldridge Act” that reformed Alabama’s child abuse and neglect laws into a model for states throughout the country.

In addition to his legal career, Aldridge was an accomplished artist specializing in mixed media abstract paintings such as “blue enso,” which was his last completed work. Of her late husband’s interests, Marsha Aldridge said “The law fed his spirit, but it was painting that nourished his soul.”

The Bounds Law Library would like to acknowledge Marsha Aldridge King for this generous donation.

 

[1] University of Alabama School of Law, Capstone Lawyer (2000), 33-34.

A New Day, a New Building: Albert J. Farrah’s Years of Victory

The following is a post which discusses the history of the University of Alabama School of Law. It covers incidents, developments, and personalities concerning the deanship of Albert Farrah, which began in 1913. This post is the second 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.

A.J. FARRAH, FROM MICHIGAN TO ALABAMA

Dean Albert J. Farrah was born in Adrian, Michigan in 1863, and died in Tuscaloosa in 1944, a few days short of his eighty-first birthday. He received his education at Adrian College and at Cornell College in Iowa, after which he taught school and was Superintendent of Schools at Michigamme, Michigan. In the meantime he studied law at the University of Michigan. He received his LLB from Michigan in 1896 and practiced in Ann Arbor for several years while teaching at the University of Michigan as an instructor.[1]

Photograph of Albert Farrah teaching, c. 1890.
Albert Farrah, c. 1890

In 1900 Farrah embraced an opportunity to move south to Deland, Florida, where he was the founding dean of the Stetson University School of Law. In 1909, “he was called to the University of Florida, where he again founded the school and became Dean and Professor of Law.”[2] There is no doubt that Farrah’s teaching style was challenging, probably in the best Socratic fashion. The editors of Stetson’s 1909 yearbook, the Orange Thorn, quoted him as having warned his senior class that “the law is a jealous mistress”—an old saw worked to death by most law professors of the time. Farrah, however, apparently meant what he said. Speaking of the senior class, the editors observed that “of all those who have paid court only three have proved sufficiently faithful to satisfy her jealous demands and present themselves as candidates for her reward, . . . duly approved by her lawfully constituted agent, A.J. Farrah.”[3]

In 1912 the University of Alabama’s president, George H. Denny, invited Farrah to come to Tuscaloosa as a law professor. A year later the law dean William Bacon Oliver resigned to run for congress and Farrah was named dean of the law school. The two men, Denny and Farrah, would work together for much of the following three decades. It was a productive arrangement, for both men shared the common goal of making Alabama one of the best schools in the south.[4]

STUDENTS, FACULTY, AND CAVEATS: EARLY YEARS, 1913-1920

One measure of Farrah’s success was the continued growth of law school enrollment. From 139 students in his first year as a professor the number of law students rose to 277 in the academic years 1934-1935.[5] Farrah, however, was concerned about more than rising numbers; his focus was also about law students as individuals. He remarked, long after the fact, that the “friendship and support” of his students was crucial to his success in “that hard first year of service” and afterward.[6]  Given this closeness to the students it should be no surprise that Farrah’s emphasis was not just about developing “sheer intellectual brilliance.” His colleague and successor William Hepburn wrote that Farrah “wanted the Law School to produce its share” of great intellects; but he was “just as interested in the average student, even the poor student,” and “nothing “delighted him more than to discover that some student he had at one time contemplated dropping from school for poor work had made a success at the bar.” Hepburn noted that Farrah also concerned himself with “standards of ethical practice, and he gave much thought to questions of legal ethics.”[7]

Farrah was an excellent classroom teacher—though, as the 1916 Corolla put it, his use of the Socratic Method made him “the terror of those unfortunates who happen to be unprepared.”[8] Still, his students saw him as more than just an academician. In dedicating the 1917 Corolla to Farrah, its editors remarked upon his “faithful service,” his “ability as an instructor and his high character as a man.”[9]

There is no doubt that Farrah was something of a wonder-worker at the School of Law, but we should remember that the times in which he lived imposed considerable limitations upon his larger impact. By a combination of law and custom, two large demographic groups were drastically underrepresented at the School of Law. The school had admitted two female students prior to Farrah’s arrival: Luelle Lamar Allen, who graduated in 1907, and Maud McLure Kelly, Class of 1908.

Photograph of Maud McLure Kelly
Maud McLure Kelly

Indeed Kelly, who had graduated third in her class, was already a successful practitioner by the time Farrah came to Tuscaloosa.[10] But Farrah did not profit by considering her example. Female students studied law during his deanship in ones and twos.

Even more rigidly, Alabama schools and colleges were segregated by race during Farrah’s entire tenure (and for decades before and after). African-American school children were prohibited by law from studying alongside white children, and while the laws governing college students were much less specific—the 1907 Code contains no reference to race in the laws pertaining to the University of Alabama—still the custom of exclusion was firmly in place.[11] For much of the first half of the twentieth century, the state offered no professional legal education for African Americans.[12] Thus Farrah, like nearly all white educators, played his part in a situation little removed from what one scholar has called the “nadir” of American race relations.[13]

When Farrah took over the deanship, the Law School had one other professor, Adrian S. Van de Graaff, and “two part-time lecturers.” Farrah quickly added another full-time faculty member, Edmund C. Dickenson, whom he had known at the University of Florida. The law faculty was in a state of flux during the late 1910s and early 1920s—the World War and its aftermath were largely to blame.

Image of WWI memorial
UA Law WWI Memorial

But by the mid-1920s Farrah presided over a faculty of five full-time law professors and a part-time staff that featured a future Chief Justice of the Alabama Supreme Court.[14]

STUDIES, PUBLICATIONS, AND ACCREDITATION, 1920-1928

As early as 1920-1921, Farrah and President Denny worked successfully to persuade the University’s Board of Trustees to approve a three-year course of study, bringing the Law School up to what was increasingly the national norm. This move “permitted expansion of existing courses, particularly Property, Torts, and Equity, and the addition of new ones, including Practice Court and several electives.” These courses were taught by the “case-study technique,” which required students to use casebooks and brought them under the Socratic gaze of their professors. The 1920s also saw the launch of the school’s first scholarly journal. After some time spent in planning, the Alabama Law Journal was first issued in October 1925, edited by a panel of faculty members. The decade also saw the beginnings of national legal fraternities and other law-related clubs at Alabama, including the Somerville Literary Society, founded in 1924.[15]

By the 1920s, University of Alabama law graduates were making a name for themselves, which was reflected in the state legislature’s 1923 renewal of the “diploma privilege”; this allowed UA Law graduates admission to the bar without sitting for a bar exam.[16] In the meantime, Farrah pursued the goal of American Bar Association membership. By 1922, the ABA had required its members to maintain a three-year program of instruction—already in operation at Alabama—and had mandated that its members require two years of college as a necessary preliminary to law school admission. At the urging of Denny (and Farrah), the UA Trustees approved the new admissions standard in 1926. Clearing this second hurdle was sufficient, and in 1926 the ABA placed the law school on its list of approved law schools. After two years’ probationary membership, the Law School was accepted into membership in the Association of American Law Schools, the legal academy’s highest degree of accreditation.[17]

THE CROWN JEWEL

To Farrah, the only missing element of the Law School was a proper setting. Since the beginning of his tenure, the school had been housed in Morgan Hall, an attractive, recently constructed building; but it was but hot in the summer, cold in the winter,[18] and generally cramped.[19] President Denny agreed with Farrah, and starting in 1920 he made construction of a new law school building a priority project.

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]

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.