Here I'll deal briefly with two groups of lawyer emigrants - one known (albeit underappreciated and understudied by most contemporary American legal scholars), and another largely unknown. The first group, of course, is the Loyalists. A significant proportion of American lawyers in the 13 mainland English colonies that revolted in 1775 (two, Nova Scotia and Quebec, notably did not) remained loyal to the Crown. A good number of those worked for the Crown or had strong ties to the colonial administrations; some, however, adhered solely out of legal principle and had little sympathy with self-styled "patriots" who took up arms against the King. In a few colonies, such as Pennsylvania, some Loyalist lawyers were able to weather the storm of revolution; withdrawing to the country during hostilities, they were allowed to make their personal peace with the winning side after British and Loyalist forces were defeated. They never had to leave. In other colonies such as Massachusetts and Connecticut, most Loyalist lawyers were not so lucky. Abused, attacked and beaten, forced to take to the highway with their families, stripped of their property and sometimes even their clothes, once successful lawyers like Fyler Dibblee, a Yale graduate from Stamford, ended up boarding overcrowded British evacuation ships and sailing with their wives and children as refugees to grim and generally impecunious exile in Nova Scotia, the West Indies, and England itself.
In telling their tale to my American law students I repeatedly emphasize that at the outset of war, the Loyalist lawyers were as American as any of them, and maybe moreso. Many were from families who had been in America for generations, longer in fact than the American lineage of most of the students in my Pittsburgh classroom. Many were forced to leave the only land they had ever known for an uncertain future either in a wilderness, or in strange foreign colonies and cities. They were pointedly no citizens of the new United States, but they remained American in their background, their views, their prejudices and their social networks. In places like Nova Scotia, they infused local law and government with a new democratic energy they could not deny in themselves, maintaining cross-border family and even professional ties that subtly Americanized the legal culture of the Canadian Maritime provinces for generations. In purporting to escape the reach of American law, they ironically became vehicles of its first great exportation.
Less than a century after the Loyalist lawyers departed, a second(!) great American civil war created another generation of American lawyer emigrants, this time Confederates. The experiences of this group have largely been overlooked, partially because the general Confederate outmigration after 1865 was at a much lesser scale (the Confederates notably had no "mother country" to move to), and partly because most of the emigrants eventually returned. Just as the Revolution displaced American lawyers on the "wrong" side, however, so did the War Between the States.
|Credit: Ann Baker|
Theirs was initially a forced march both personally and professionally; in the United States, federal loyalty oaths barred them from practicing law as former Confederate leaders and military officers. Over time, however, circumstances changed. Like the Loyalist lawyers, the Confederate lawyer exiles soon became homesick; many sought to return home to a South that was still willing to welcome them. Generous presidential pardons facilitated their reintegration, and the decision of the US Supreme Court in the 1866 case of Ex parte Garland removed the loyalty oaths as an effective obstacle to returnees' legal practice in the US federal courts.
The experience of both the Loyalist and the Confederate lawyer emigrants reminds us that American lawyering was never something that just happened "here". Long before American lawyers set up offices in Europe, or China, or Mexico, American lawyers spread across the globe. The first diasporas were involuntary, but the lawyers nonetheless remained American (as they understood that term) and they carried abroad what they considered to be the best parts of their legal tradition. Against huge odds and in face of major technical and practical obstacles they struggled to survive and prosper professionally. More often than we might wish to acknowledge they also struggled to survive simply as human beings in the midst of displacement and chaos left in the wake of war. We have a lot to learn from them.