Practicing Law in Frontier California.
By Gordon Morris Bakken. Lincoln: University of Nebraska Press, 1991. Bibliography. Illustrations. Index. 192 pages.
Reviewed by Francis N. Stites, Professor of American Constitutional History, San Diego State University. Author of John Marshall: Defender of the Constitution, 1981.
“Despite the growing attention to the legal history of the American West,” writes Gordon Morris Bakken, “the role of the bar has drawn little print.” (p. xvii) His Practicing Law in Frontier California fills that gap by examining the California bar, 1850-1900, as Gold Rush California urbanized and industrialized.
Like John Philip Reid in Law for the Elephant (1980), Bakken sees law as the institutional “glue” (p. xiv) of western communities. He also thinks that lawyers played a “civilizing” (p. xvii) role. Disdaining narrow methodologies such as Critical Legal Studies, he uses an eclectic social history and “thick description” (p. xv) to investigate individual attorneys acting in their times. In this period over six thousand men and women practiced in California, and Bakken uses the records of 1,168 members of an “elite” (p. 2) bar (including San Diegan Oliver S. Witherby) to analyze the frontier bar. Chapters in this volume describe the lawyers’ place of origin, reasons for migration, legal education and literature, conditions of practice, compensation, and public image. There are additional chapters on the details about debt collection, tort, corporations, and criminal law practice.
The basic point is that California’s law practice changed with the state and generally followed national trends. Bakken shows, for example, that rural lawyers by the end of the nineteenth century needed a steady income that their practice did not provide. Consequently, they more frequently held public office and engaged in journalism than urban lawyers who concentrated their energy on their practice. Legal education changed from apprenticeship to formal law school; legal practice from single practitioner to law firms.
The most interesting discussion of these individual lawyers occurs in the chapter, “Practicing Criminal Law,” where Bakken’s sources talked more about the ideals of their practice than about mechanics. This different kind of evidence allows Bakken to concentrate almost exclusively on the similarities between vigilante and formal justice. Lawyers in Gold Rush California thought that vigilante justice supported the formal legal system, and they worked to bring the “simplicity, certainty, and severity of punishment” (p. 100) that characterized vigilante justice to the formal system. Bakken concludes that they tolerated due process violations in formal prosecutions because they, like vigilantes, wanted to repress crime. They shared the culture’s reverence for law and order.
This provocative point, however, highlights the challenge for historians trying to explain law’s relation to social values. The most interesting questions are often the most intractable. When profound respect for law was part of the cultural baggage, for example, is it a sufficient explanation of lawyers’ actions to say that they were like everyone else? What beyond the details of business and education made lawyers different? Bakken’s conclusion that the law was “mysterious to some, but most adhered to its command in the lawful West of nineteenth-century California” (p. 139) does not sufficiently explain the differences between lawyers and others. What was the lawyers’ “civilizing” role?
Bakken knows the problem and has chosen first to examine the information. In this volume he provides the thick narrative that he intended. His prodigious research and impressively tight prose combine to make this the starting point for subsequent studies of the California bar.