Thursday, February 20, 2014

American Lawyer Emigrants: Loyalists and Confederates

As an immigrant in the United States who happens to be a legal historian, I'm naturally interested in American lawyer migration patterns over time - not only entries (which I've already touched on in one post, and will discuss in more detail in another), but exits. The latter are much more elusive, as our potential objects of study literally removed themselves from this country, often under political circumstances that made them (and to some extent still make them) anathema. They were nonetheless American lawyers, and their Americanness affected them (and those they encountered) in multiple ways for the rest of their professional and personal lives. Thus they deserve to be included in the history of American lawyering.

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
The immediate impetus to the exit of most Confederate lawyer migrants was, of course, military defeat. This was even more significant for Confederate lawyers than for the Loyalists, given that lawyers dominated the upper ranks of the Confederate military and the Confederate government. A few Confederate lawyers saw the "writing on the wall" and got out before disaster struck. Kentucky Colonel Bennett Hornsby moved to Halifax, Nova Scotia, in 1863, and reinvented himself as a land speculator. Most of his colleagues, however, waited until the bitter end, when they were swept up in the undignified and often perilous scramble for safety and refuge precipitated by the fall of Richmond. Former Confederate Attorney General and Secretary of State Judah P. Benjamin escaped to Cuba and then to England, ultimately becoming a leading light in the late Victorian bar and the esteemed author of Benjamin on Sales, the Ninth Edition of which is actually slated for publication in October 2014. Arkansas Major General Thomas Hindman fled to Mexico, where he established himself in a colony of other Confederate refugees and tried to reestablish his law practice. Virginia lawyer and Confederate Lieutenant General Jubal Early, perhaps most notorious for his daring 1864 raid on Washington City, decamped like Hindman to Mexico, and then to Canada, where he wrote his memoirs. John C. Breckinridge, another Major General and the last Confederate Secretary of War (not to mention a one-time presidential candidate who had run against Abraham Lincoln in 1860) eventually made it to Ontario with his family, where he posed for a poignant photograph with the American side of Niagara Falls as backdrop. Breckinridge too tried to carry on as a lawyer, even teaching (presumably American) law to some of his former officers and compatriots who gathered around him in exile in Toronto.

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.