Bridget J. Crawford, Lecturer-in-Law, University of Pennsylvania Law School; Attorney, Milbank, Tweed, Hadley & McCloy LLP; J.D. 1996 University of Pennsylvania Law School; B.A. 1991 Yale University. In memory of Elizabeth B. Clark.
In the face of discouragement and disaster, under the frown of professional distrust, sustained by the courageous and unselfish toil of men who have devoted their best years to her interests, [the Law Department of the University of Pennsylvania] has silently but steadily forced her way, urged onward by the weight and value of the principles she teaches, until she now securely rests upon the confidence of the bench and the respect of the bar. . . . Her halls are thronged, her reputation is penetrating into distant places, her usefulness increases with her years. . . . We have seen that the founding of our Law School was coeval with the Constitution of the United States and the first true Constitution of Pennsylvania. She was the daughter of Liberty wedded to Law, and her sisters were Union and Self-government.1
Writing in 1882, Philadelphia lawyer Hampton Carson characterized the Law Department of the University of Pennsylvania as a valiant and principled woman, "silently but steadily" working against odds to eventually gain the respect of the legal profession. His comments alluded to the school's difficulties in getting started during a period in which legal education was primarily organized around the practical training of a law office apprenticeship. Only in the 1870s, when the nature of legal practice itself began to change, did school-based education become more popular. Curiously, Carson spoke of the law school as female in an era when masculine terms defined law students and the legal Page 132 profession. Indeed, law itself was anthropomorphized as a man to whom the school was "wedded." For the most part, during the nineteenth century, future lawyers cultivated the admired characteristics of an athlete or knight-in-training-bravery and a sense of responsibility. Like a classic Republican Mother,2 the law school was a female figure whose role was to nurture these values in her male students. In turn, the men who "thronged" in the feminine school rendered it more masculine in its "penetrating" reputation.3
Yet when Carson made his observations in 1882, the Law Department was in the middle of its first experience with co-education. Carrie Burnham Kilgore, member of the class of 1883, had finally succeeded in becoming enrolled as a student, despite being denied admission ten years prior.4 Her presence at the law school challenged the conception of legal education as an exclusively male sphere. Although the classroom experience and Page 133 extracurricular activities during her era continued to emphasize the maleness of a legal career, the role of women in the law was a contested issue that student members of the Law Academy of Philadelphia frequently debated.
After a long period in which no other females enrolled, women finally began attending the Law Department in greater numbers during the 1890s.5Excluded from student activities by their male counterparts, the women students formed their own groups; their presence at the Law Department was thereby institutionalized.6 This is not to say that the school, or legal education, became any less a place considered principally for men in the 1890s. In Carson's words, the school remained an establishment "sustained by the courageous and unselfish toil of men."7 Even when the Law Department began its modern era in its current location in West Philadelphia, leaders of the school were self-conscious of its past and glorified the role of individual male legal scholars and lawyers who provided the school with its intellectual roots. Between 1870 and 1900, women made some inroads into legal education, yet the Law Department of the University of Pennsylvania continued to cultivate and inculcate masculine virtues.
Using the University of Pennsylvania's Law Department and, to some extent, the figure of Carrie Burnham Kilgore as lenses, this article examines a thirty year period of major changes in legal education.8 In Part I, I describe the historical roots of the school and its halting establishment not so much in the face of "discouragement and disaster," as Carson described, but in light of the predominant role individual lawyers played in training students through law office clerkships. Part II details several related changes in the legal profession in the 1870s: the law office declined in prominence; bar associations became more active; and law schools developed rigorous requirements. In particular, I describe the reasons for the decline of clerkships as important vehicles for student learning. In Part III, I turn to the experience of students at the Law Department in the 1880s, particularly Page 134 during the time Kilgore became the school's first female student. Although the transformations of the 1870s had the apparent effect of making law school more accessible to women, the Law Department at the University of Pennsylvania remained a uniquely male sphere whose hallmark was the inculcation of masculine virtues. Part IV discusses the transition to the modern era of the Law Department, marked most notably by the physical relocation of this "daughter of liberty wedded to law" to a new building in West Philadelphia.
In 1871, Carrie Burnham applied for admission to the Law Department at the University of Pennsylvania.9 Even though enrollment was at an all- time low (down to forty nine students in 1869-70 from sixty three in 1868- 6910), the Law Department was not so desperate for students that it would accept women. The dean at the time, E. Spencer Miller, "very gruffly told the applicant that if the Board of Trustees admitted a woman as a law student, he would resign, adding, 'for I will neither lecture to niggers nor women.'"11 Miller's reaction, described by one commentator as "more emphatic than gentlemanly,"12 succinctly reflected that legal education at the University of Pennsylvania-indeed in America-was the exclusive domain of white men.
Miller's comment, while indicative of his own views on women, also revealed the belief that legal education was not something the school provided to anyone who asked. In fact, the majority of legal education in the 1870s took place outside the Law Department. Clerkships and private study with lawyers already admitted to the bar were the principal modes of legal education.13 For example, before applying to law school, Burnham had Page 135 already been studying for more than six years with Damon Kilgore, a local Philadelphia lawyer and the man that would later become her husband. 14
Legal education at that point was highly individualized, if somewhat haphazard. One Philadelphia lawyer described his first day as a student in a law office as follows:
I shall never forget my first day in a law office. I was given Sharswood's Blackstone to read, and sundry writs and praecipes to prepare from forms, the very names of which I had never heard before. This was our daily routine. We filed papers in the Prothonotary's office, drew deeds and mortgages, mechanic's liens and many other things ejusdem generis; we attended sheriff's sales; we went to the offices of the Recorder of Deeds and the Register of Wills and prepared briefs of title; we obtained judgment searches, conveyance and mortgage searches, for the title insurance companies were then almost unknown and little used.15
Other than Blackstone, the student did not begin his legal education with textbooks. Rather, he learned by doing: preparing forms, filing papers, and executing judgment searches.16 The law student was the lawyer's helper; he was expected to learn as he went along. In return for the privilege of becoming a participant-observer in the law office, the clerk paid the lawyer a fee.17 In return, the lawyer "gave of his time and resources to educate the younger man."18 Typically, a practicing attorney had only one clerk who "observed very closely every stage of every case in his master's office. The lawyer would explain every legal step taken. As the student progressed he would be given more responsibility for the legal research and the out-of- court preparation of the cases of his master's clients."19
Because the clerkship was highly individualized, the quality of legal education depended on the nature and amount of instruction the clerk received from the practicing lawyer. Therefore, historians of nineteenth century legal education have made three principal critiques of the law-office clerkships. First, the busy lawyer did not devote enough attention to the law Page 136 student.20 Second, the lawyer's work was the driving force behind a student's substantive learning, such that there was no systematic approach to the acquisition of knowledge.21 Third, the senior lawyer's office did not have all the academic resources that a student needed to fill in gaps in his learning.22
Despite these drawbacks, the inherently private nature of clerkships meant that...