History of the American BAR

Chapter II

The Colonial BAR of Virginia and Maryland

Notwithstanding the early acceptance of the English Common Law as the basis for its own law, Virginia produced no trained Bar for nearly one hundred years. This condition was undoubtedly due to the fact that its governing class was practically a landed aristocracy, conservative and extremely jealous of any other power. The Colony, however, seems to have been troubled from an early date with the lower class of petty attorneys; and the problem of how to control these attorneys appears to have perplexed Virginia more than any other Colony.

As early as 1642-1643, under an act “for the better regulating of attorneys and the great fees exacted by them,” fees were confined to twenty pounds of tobacco in the County Court and forty pounds in the Quarter Court: attorneys were forbidden to plead without obtaining license from the court; they could not plead in more than the “Quarter Court and one County Court;” and they could not refuse to be “entertayned in any cause” under heavy fines to be paid in tobacco. This act, however, did not apply to “such who shall be made special attorneys within the colony or to such who shall have letters of procuration out of England.”

This Mercenary Attorney Act was repealed in 1656; and provision was made for licensing attorneys. The next year, however, trouble apparently having again arisen, all fees were taken away from attorneys; and “whereas there doth much charge and trouble arise by the admittance of attorneys and lawyers through pleading of causes thereby to maintain suites in lawes to the great prejudice and charge of the inhabitants of this colony,” they were forbidden to plead in any court “or give counsel in any cause or controversie, for any kind of reward or profitt,” on penalty of five thousand pounds of tobacco, and were required to swear, when they appeared in any-cause, that they had not violated this Act, “because the breakers thereof through their subtillity cannot easily bee discerned.”

In 1680, however, a law was passed again, allowing attorneys to practise under rigid restrictions and after license by the Governor.

The following reason for this reversal of policy was given in the preamble to the statute:

"Whereas all courts in the country are many tymes hindered and troubled in their judicial proceedings by the impertinent discourses of many busy and ignorant men who will pretend to assist their friend in his business and to cleare the matter more plainly to the court, although never desired nor requested thereunto by the person whom they pretended to assist and many tymes to the destruction of his cause and the greate trouble and hindrance of the court.

This act, being found “inconvenient,” was repealed after two years; but the repealing act was itself annulled by royal proclamation. As late as 1705, Beverly wrote in his History and Present State of Virginia:

“Every one that pleases may plead his own cause, or else his friends for him, there being no restraint in that case, nor any licensed Practitioners in the law."

In 1732, however, another statute was passed declaring that “the number of unskilled attorneys practising at the County Courts is become a great grievance to the country in respect to their neglect and mismanagement of their clients' causes and other foul practices,” and providing for licenses for the admission of lawyers, upon the taking of an oath (the form of oath being practically that in use in the New England Colonies). There appears to have been a distinction, however, at this time, between that class of men who practised only in the County Courts and those who appeared in the General Court; for this statute of 1732 provided that it should not be construed to extend “to any attorney who at the time of passing thereof is a practitioner in the General Court or to any counselor or barrister at law whatsoever.” This reference to the distinction between attorneys and barristers is one of the earliest in all American Colonial legislation or court rules.

Finally, in 1748, a general statute provided for licensing of all lawyers and also a form of oath to be taken by them.

All this early legislation was directed probably not so much against the legal profession itself, as against the character of the men who composed it. Most of the attorneys were mere charlatans, men of no character or influence. As Judge Minor said in his Institutes,(1) “for fully a century, the lawyer seems to fortune and to fame unknown,” not one of them having attained a notoriety or distinction worthy of a biographer. John Fiske says that “they were frequently recruited by white freedmen, whose career of rascality as attorneys in England had suddenly ended in penal servitude.

(1) Minor's Institutes, Vol. IV, p. 168 (1875).

In 1732, the controversy between the colonists and the Proprietor was settled by an act providing that “when the acts and usages of the Province are silent, the rule of judicature is to be according to the law and statutes and reasonable customs of England, as used and practised within the Province.” It is to be noticed, however, that even here the colonists claimed their right to adopt the Common Law, or not, as they saw fit.(1) From the beginning of its history, Maryland had a more complete system of courts than any other Colony, based largely on the English judiciary C Courts of Pupowder (Pypowdry) or Market Courts, Courts Baron and Leet incident to the landed estates, County Courts, the Provincial Court, and a Court of Appeal. Although in 1638 the General Assembly tried many cases, the Provincial Court gradually absorbed all superior jurisdiction. It consisted of the Governor and his Council, appointed by the Proprietor or his deputy, and therefore “dependent on the mere breath of his nostrils.” (2) Its members also composed the Upper House of the General Assembly. In 1692, when Maryland became a Royal, instead of a proprietary Province, a Provincial Court was organized apart from the Council, and the Governor ceased to be Chief Justice. The Governor and Council were constituted, however, the Court of Appeals.

(1) See especially State v. Buchanan, 5 H. & J. 356 (1821).
(2) See Calvert v. Eden, 2 Harris & McHenry 345, 360.
 For a history of the courts in Maryland, see dissenting opinion of Taney, C. J., in Kendall v. U.S., 12 Peters, p. 631.