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Education and Professional Life Styles: Law and Medicine in the Nineteenth Century

  • William R. Johnson (a1)

Extract

BY THE END of the nineteenth century a period of formal schooling had replaced apprenticeship to a practitioner as the primary method of professional training and certification for American lawyers and doctors. In their public pronouncements leaders of these professional groups gave essentially similar reasons for this important shift. Lawyers and doctors commonly urged the formation of professional schools because such institutions, they argued, would through the systematic instruction offered there inevitably raise the moral and intellectual tone of the entire profession. To group students together on a regular basis under the tutelage of the most prominent members of a profession seemed inherently superior to the apprenticeship arrangement which necessarily reflected the impact of a wide range of professional talent and ethics. Finally, some men also supported professional schools because they would provide institutional shelter to those professionals who wished to set the practice of the profession on a more scholarly basis.

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1. Flexner, Abraham, Medical Education in the United States and Canada, The Carnegie Foundation for the Advancement of Teaching, Bulletin Number 4 (Boston, 1910), p. 6; Reed, Alfred Zantzinger, Training for the Public Profession of the Law, The Carnegie Foundation for the Advancement of Teaching, Bulletin Number 15 (Boston, 1921), pp. 444, 443.

2. Fishbein, Morris, A History of the American Medical Association, 1847–1947 (Philadelphia, 1947), pp. 888889.

3. Hurst, James Willard, The Growth of American Law: The Law Makers (Boston, 1950), p. 277.

4. The first law governing admission to the bar in Wisconsin Territory was passed in 1838 and required that the applicant to the bar be a three-month resident of the territory, a citizen of the United States, twenty-one years of age, and of good moral character. The applicant had also to prove to one of the judges of the Territorial Supreme Court that he had studied law for at least two years. Acts Passed at the First Session of the Legislative Assembly of the Territory of Wisconsin, 1836, Chapter 24, pp. 8081. These standards were relaxed somewhat in 1839 under terms of a new law that did away with the requirement of two years of study and insisted instead only upon a “requisite knowledge of the science and practice of law.” Statutes of Wisconsin Territory, 1838–39, p. 346. This law governed the Territory of Wisconsin, until 1848 when Wisconsin was admitted to the union and the state legislature repealed all territorial legislation. In place of the old law regulating admission to the bar the state legislature passed in 1849 a law that required only that the applicant be a resident of the state and of good moral character. No examination of legal knowledge was mandated. The Revised Statutes of the State of Wisconsin, 1849, p. 441. This law remained in effect until 1861 when there began a gradual strengthening of the bar admission standards.

5. Jenkins, James G., “Address,” Wisconsin State Bar Association Reports, Vol. 7 (1906), p. 82. See also Haugen, Nils P., Pioneer and Political Reminiscences (Evansville, Wisconsin, [1930?], pp. 194–195.

6. Hooper, Moses M. to Jackson, A. A., June 8, 1903, in Jackson, A. A. Papers, Box 2, Folder 1 (1903–1905), Wisconsin State Historical Society.

7. A large bulk of this reminiscence can be found in the following works: Pinney, S. U., “Preface” to Wisconsin Reports (Chicago, 1872), Vol. 1, pp. 956; Reed, Parker McCobb, The Bench and Bar of Wisconsin (Milwaukee, 1882); Berryman, John R. (ed.), History of the Bench and Bar of Wisconsin (Chicago, 1898); Winslow, John B., The Story of a Great Court (Chicago, 1912); Glasier, Gilson G. (ed.), Autobiography of Roujet D. Marshall (Madison, Wisconsin, 1923); Reminicences of the Bench and Bar of Dane County (Dane County Bar Association, n.d.); Anderson, James Sibree, Pioneer Courts and Lawyers of Manitowoc County, Wisconsin: Collections and Recollections (Manitowoc County Bar, 1921); and Reports of the Wisconsin State Bar Association, especially volumes One through Four (1878–1901).

8. Strong, Moses M., “Presidential Address,” Reports of the Wisconsin State Bar Association, Vol. 1 (1878–1885), p. 53. For an excellent discussion of the lawyer on the Tennessee frontier, see Calhoun, Daniel H., Professional Lives in America: Structure and Aspiration, 1750–1850 (Cambridge, Mass., 1965), Chapter 3.

9. Butterfield, Moses B. to his wife, December 16, 1852, in the Moses B. Butterfield Papers, Wisconsin State Historical Society.

10. Pinney, , Wisconsin Reports, Vol. 1, p. 49; Berryman, , History of the Bench and Bar, Vol. 1, p. 78; Bryant, E. E., “The Supreme Court of Wisconsin,” The Green Bag, Vol. 9 (1897), p.27.

11. Glasier, Gilson G. (ed.), Autobiography of Roujet D. Marshall, Vol. 1, pp. 256257.

12. Seaman, W. H., “Address,” (1898), Reports of the Wisconsin State Bar Association, Vol. 2 ([1886-] 1899), pp. 174175.

13. Bunn, Romanzo, “Remarks,” (March 1,1905), Ibid., Vol. 6(1904–05), p. 114.

14. Ibid.

15. Jones, Burr W., “Tendencies of Half a Century in Wisconsin Courts,” Ibid., Vol. 5 (1902–03), p. 156.

16. Wheeler, Nels, Old Thunderbolt in Justice Court (Baraboo, Wisconsin, 1883), p. 53.

17. Jones, Burr, “Tendencies of Half a Century,” p. 157.

18. Ibid.

19. Ibid., pp. 157158.

20. Jenkins, James G., “Remarks,” Wisconsin State Bar Association Reports, Vol. 7 (1906), pp. 7879.

21. Ryan's address to the jury on that occasion can be found in Ryan, Edward G., Speeches and Arguments of Chief Justice Ryan While at the Bar (Madison, Wisconsin, 1909).

22. Keyes, Elisha W., “Wisconsin Bar in the Territorial Period,” Reports of the Wisconsin State Bar Association, Vol. 2 ([1886-] 1899), p. 342.

23. Berryman, , History of the Bench and Bar, Vol. 1, p. 72.

24. Ibid.

25. Hurst, , Growth of American Law, p. 206. Berryman recounts how Judge Gale, challenged in court by Bennett, John R., later apologized to Bennett “at the supper table.” Berryman, , History of the Bench and Bar, Vol. 1, p. 278. Wisconsin lawyers were simply following practices common throughout the United States. For examples of conviviality and informal professional sanctions in other areas of the country, see Warren, Charles, A History of the American Bar (Boston, 1911), pp. 204–208.

26. Jones, , “Tendencies of Half a Century …,” p. 159.

27. Reeve, John Dr., “A Physician in Pioneer Wisconsin,” Wisconsin Magazine of History, Vol. 3 (1919–1920), p. 313.

28. Meggett, Alexander, “Experiences and Humorous Reminiscences …,” Reports of the Wisconsin State Bar Association, Vol. 2 ([1886-] 1899), p.172.

29. For information on the nineteenth century American hospital, see: Norwood, William F., Medical Education in the United States Before the Civil War (Philadelphia, 1944), pp. 4447. One of the most helpful and suggestive analyses of the hospital's function is Crichton, Michael, Five Patients: The Hospital Examined (New York, 1970).

30. Calhoun, , Professional Lives …, pp. 67.

31. A good general description of the methods and medicines used by the regular doctor is in Shafer, Henry B., The American Medical Profession, 1783 to 1850 (New York, 1936), Chapter Four, especially pp. 96–115. For the irregular doctors' methods, in addition to the relevant sections of Shafer, see Pickard, Madge and Buley, R. Carlyle, The Midwest Pioneer: His Ills, Cures, & Doctors (New York, 1946).

32. The best balanced treatment of American medical history is Shryock, Richard H., Medicine and Society in America: 1660–1860 (Ithaca, New York, 1960). See also Shryock's Medical Licensing in America, 1650–1965 (Baltimore, 1967); and Kett, Joseph F., The Formation of the American Medical Profession: The Role of Institutions, 1780–1860 (New Haven and London, 1968).

33. Shryock, , Medical Licensing in America, pp. 3637. The importance of social qualifications in distinguishing between orthodoxy and quackery is evident in the complaint of a Boston physician early in the eighteenth century: “In our plantation a practitioner, bold, rash, impudent, a lyar, basely born and uneducated, has much the advantage of an honest, cautious, modest gentleman.” Quoted in Norwood, Medical Education, p. 22.

34. Quoted in Wilder, Alexander, History of Medicine (Augusta, Maine, 1904), p.315.

35. The terms “regular” and “irregular” physicians are not entirely satisfactory since they imply that irregular doctrines were merely intellectual aberrations from obvious scientific truth. The terms were originally used by orthodox practitioners of the nineteenth century to describe and derogate their competitors; and the continued use of the terms by medical historians today reveals their primary concern with the roots and origins of twentieth century medical theory, not with understanding professional development in the nineteenth century. That preoccupation tends to obscure the importance (and the reformist role) of the various nineteenth century medical sects. Even the most sophisticated medical histories dismiss the sects as momentary deviations from the norm of orthodoxy and explain their proliferation as a part of Jacksonian Democracy and the rise of the common man. Richard Shryock, for example, in Medical Licensing in America, notes that increased educational opportunities after 1825 “had made the public literate enough to read attacks on ‘regulars’ but not sufficiently educated to make discriminating judgments.” Given the state of medical sciences at the time, it is difficult to know what Shryock means by a “discriminating” judgment. Shryock himself undercuts his own point by going on to state that the “superiority of orthodox medicine still lay to some extent in the general education of its leaders rather than in any therapeutic advantage. Indeed, the mild practice of the homeopaths was probably safer than that followed by the regulars—though equally ineffective. Under these circumstances legislators chartered all sorts of medical schools, accepted cheap or even fraudulent diplomas, and left it to laymen to decide which type of practice was most helpful.” Once again, the meaning of “cheap” and “fraudulent” in the context as Shryock describes it, is confused, to say the least. See Shryock, , Medical Licensing in America, pp. 3637. An extended treatment of medical sects in America can be found in Wilder, Alexander, History of Medicine (Augusta, Maine, 1904). Wilder, himself an Eclectic physician, stresses the reforming zeal of the various sects but also is distant enough to perceive some of their excesses. For an account of a regular doctor's gradual move to unorthodox practice, see: Alcott, William A., Forty Years in the Wilderness of Pills and Powders (Boston, 1859).

36. Miller, William Snow, “Dane County Medical Society,” The Wisconsin Medical Journal (November 1937), pp. 929940; Transactions of the Wisconsin State Medical Society for the Year 1868, pp. 5–23; Frank, Louis F. Dr., The Medical History of Milwaukee, 1834–1914 (Milwaukee, 1915), pp. 108–116. pany, 1915), pp. 108–116.

37. Transactions of the Wisconsin State Medical Society, 1868, p. 11.

38. Frank, , Medical History of Milwaukee, pp. 127138.

39. Revised Statutes of the State of Wisconsin, 1849, pp. 231234.

40. Revised Statutes of Wisconsin, 1878, pp. 438440.

41. Transactions of the Wisconsin State Medical Society, 1880, p. 46.

42. Laws of Wisconsin, 1897, Chapter 264, pp. 505509.

43. Miller, William Snow, “Medical Schools in Wisconsin: Past and Present,” Wisconsin Medical Journal, Vol. 35 (June 1936), pp. 472486; Frank, , The Medical History of Milwaukee, pp. 216–227; Clark, Paul F., The University of Wisconsin Medical School: A Chronicle, 1848–1948 ((Madison, 1967).

44. Transactions of the Wisconsin State Medical Society, January 31, 1855, p. 27.

45. Papers of the University of Wisconsin Board of Regents, Series 1/1/3, Box No. 1, File marked “Misc. Papers, 1849–59; Accounts & Warrants, 1857–58,” located in the University of Wisconsin Memorial Library Archives, Madison, Wisconsin. The letter is undated.

46. Middleton, William S., “The First Medical Faculty of the University of Wisconsin,” Wisconsin, Medical Journal, Vol. 54 (1955), pp. 378, 437. Middleton argues that Castleman's “position that this element of the University should be operated by the Medical profession as a separate educational entity was obviously untenable.” Ibid., 437. At the time, however, there did exist precedents for the control of a medical school by a medical society in Vermont, Connecticut, and New Hampshire. See Shafer, , The American Medical Profession, pp. 43–44.

47. Transactions of the Wisconsin State Medical Society for the Year 1868 …, p. 77, 82–83.

48. Quoted in Miller, William S., Medical Schools in Wisconsin,” p. 481.

49. Ibid.

50. See, generally, Calhoun, , Professional Lives, pp. 5987.

51. Reed, P. M., Bench and Bar of Wisconsin, pp. 478479; Berryman, , History of the Bench and Bar of Wisconsin, I, p. 337; Reminiscences of the Bench and Bar of Dane County, p. 39.

52. For an example of such a fee bill, see: Reminiscences of the Bench and Bar of Dane County, pp. 3941.

53. Berryman, , Bench and Bar, I, pp. 329330.

54. Hurley, M. A., “The Mission of the State Bar Association of Wisconsin,” Wisconsin State Bar Association Reports, Vol. 9(1911).

55. The evidence for this assertion is found in Johnson, William R., “The University of Wisconsin Law School: 1868–1930,” Unpublished Ph.D. Thesis, University of Wisconsin, 1972.

56. Reed, , Training for the Public Profession of the Law, p. 443.

57. Ibid.

58. Johnson, , “The University of Wisconsin Law School: 1868–1930.”

59. Hurst, , The Growth of American Law, p. 302.

60. Jones, , “Tendencies of Half a Century …,” p. 161.

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