History of the American BAR

Chapter III

Colonial Massachusetts BAR

The history of the legal profession in Massachusetts deserves, perhaps, a fuller statement than that of any other Colony, for two reasons – first, because of the richness of materials at hand in the shape of documents, records, contemporary letters, diaries and histories; and second, because of the fact that this Colony developed a larger and better organized Bar than any other in pre-Revolutionary days. Moreover, the extreme spirit of independence in its colonists on the one hand, the preponderating influence of the clergy among them on the other, and the existence within its borders of the largest college in the country, had an effect upon the course of its law and the growth of its Bar that differentiated its history in some respects from that of the others. Nevertheless, even Massachusetts, like the other Colonies, started its career lawyerless.

Of the sixty-five men who landed at Plymouth in 1620 and founded the Plymouth Colony, no one was a lawyer; and among the founders of the Massachusetts Bay Colony (1628-1634) there was not an actual practising lawyer. Although John Winthrop, its Governor, and Emanuel Downing had been admitted to the Inner Temple in London, and Richard Bellingham, Simon Bradstreet, Herbert Pelham, John Humphreys, and Thomas Dudley and a few others had doubtless been students of law or university men, they were not engaged in the practise of the profession.(1)

(1) Proc. Mass. Hist. Soc. (1878), p. 3

The law administered by the courts was the Colony’s own law, and not the Common Law, except so far as it was expressly adopted. Thus, in 1636, the Colony recognized among what it termed its “General Fundamentals” “the good and equitable laws of our nation suitable for us in matters which are of civil nature (as by the Court has been accustomed), wherein we have no particular law of our own.” And, in 1671, the General Laws and Liberties of New Plymouth Colony provided that “no person shall be endamaged in respect of Life, Limb, Liberty, Good name or Estate under colour of Law or countenance of authority, but by virtue or equity of some express Law of the General Court of this Colony, the known law of God, or the good and equitable laws of our Nation, suitable for us.”

In Massachusetts Bay Colony, the Governor, Deputy Governor and eighteen Assistants constituted the Court, as well as the Legislature, from 1629 to 1635. They acted both as judges, magistrates and legislators(1) At their first meeting at Charlestown, in August, 1630, as a “Court of Assistants,” they established rules of proceedings in civil matters and powers for punishing criminals. In 1634, the General Court, consisting of a House of Deputies or Representatives of the “free men” of the Colony, and sitting with the Governor and Assistants, was established by a law declaring that:

“The General Court . . . is the chief civil power of this Commonwealth . . . and may act in all affairs of this Commonwealth according to such power, both in matters of counsel, making of lawes and matters of judicature by impeaching and sentencing any person or persons according to law and by receiving and hearing any complaints orderly presented against any person or court.

In the meantime, the magistrates were ordered to hear and determine causes according to law; but where there was no law, “then as near the Law of God as they can." It was natural and characteristic of the times, that this matter of framing a code should have been entrusted by the magistrates to two clergymen, each of whom framed a separate model. Rev. John Cotton, a Fellow of Emmanuel College, Cambridge, England, prepared a code called by Governor Winthrop “A copy of Moses, his judicials, compiled in an exact method.” (2) It was founded on the Scripture throughout, with references thereto, and established a pure theocracy.

(1) History of New England, by John Winthrop, Vol. I, p. 194.
(2) See Cotton's Moses, His Judicials, in Mass. Hist. Soc,. Proc,. (2d Series), Vol. XVI (1902).

The other was compiled by Rev. Nathaniel Ward, a minister at Ipswich, and the author of a curious book entitled The Simple Cobbler of Agawam. He had been a barrister of Lincoln’s Inn, in England, in 1615,(1) had entered the ministry in 1618 and been suspended for puritanism in 1633 by Archbishop Laud. This great work of his, called The Body of Liberties, consisting of one hundred fundamental laws, is entitled to the fame of being the first American law book (2) It was accepted by the people in 1641, as better suited to the times than Cotton’s Code. (3) Still, even in Ward’s Code it is to be noted that in cases not therein provided for it was the “word of God” which was to guide the courts, and not the English Common Law. Thus Liberty Number I provided:

“I.. No man’s life shall be taken away, no man’s honour or good name shall be stayned, no man’s person shall be arrested, restrayned, banished, dismembered, nor any wayes punished, no man shall be deprived of his wife or children, no man’s goods or estates shall be taken away from him nor any way indamaged under colour of law or Countenance of Authority, unless it be by virtue or equitie of some expresse law of the Country warranting the same stablished by a generall court and sufficiently published, or in case of the defect of a law in any particular case by the word of God. And in Capital cases, or in cases concerning dismembering or banishment, according to that word to be judged by the Generall Court.”

(1) See Gray, C. G., in Jackson v. Phillips, z4 Allen (Mass.), p. 599 (1867).
(2) No copy of this was discovered until I843, when Mr. Francis C. Gray found it in the Boston Athenaeum. See Mass. Hist. Soc.. Coll., Vol. VIII (3d Series), p. 196.
See also Colonial Laws of Massachusetts, by W. H. Whitmore (1890).
(3) In 1641 there was published in London An Abstract of the Lawes of New England As they are now Established, which is probably Cotton's Code. See Mass. Hist. Soc. Proc. (2d Series), Vol. XVI (1902).

“The laws of the colony are not diametrically opposed to the laws of England for then they must be contrary to the laws of God on which the common law, so far as it is law, is also founded. Anything that is otherwise established is not law but an error.”

It seems to be a fact, therefore, that the Common Law was regarded as binding, only so far as it was expressive of the Law of God, or of a particular statute of the Colony. The early court records themselves show the constant citation of scriptural authority. “The reasons of appeal and the answers make much use of quotations from Scripture–a Pertinent quotation seemed sometimes decisive in settling a disputed point. Possibly there was sometimes a readier acquiescence in an opinion of Moses than in one of the Lord High Chancellor.” (1) It is evident that with such a bails for the decisions of the courts, there was little need of lawyers learned in the English Common Law. “When the holy Scriptures were considered as a proper guide in all cases of doubt, and the parties spoke for themselves, there was no place for an order of lawyers.” (2) There can be little wonder therefore that “for more than the ten first years,” as Hutchinson says, “the parties spake for themselves for the most part; sometimes, when it was thought the cause required it, they were assisted by a patron, or man of superior abilities without fee or reward. (3)

(1) Early Court Files of Suffolk County, by John Noble, Publications of the Massachusetts Colonial Society, Vol. III (1895-1897).
(2) Address before the Suffolk Bar on Origin and History of the Legal Profession in Massachusetts, by William Sullivan, in 1825.
(3) History of Massachusetts Bay Colony, by Thomas Hutchinson, Vol. I

It was not until 1701 that practise of the law became first dignified as a regular profession, through the requirement by statute of an oath for all attorneys admitted by the courts, as follows:

“You shall do no falsehood, nor consent to any to be done in the court, and if you know of any to be done you shall give knowledge thereof to the Justices of the Court, or some of them, that it may be reformed. You shall not wittingly and willingly promote, sue or procure to be sued any false or unlawful suit, nor give aid or consent to the same. You shall delay no man for lucre or malice, but you shall use yourself in the office of an attorney within the court according to the best of your learning and discretion, and with all good fidelity as well to the courts as to your clients.” (1)

(1) This oath followed almost exactly the form set forth in England in The Book of Oaths (1649); and see also The Practick Part of the Law 1676). Practically this same form of oath was prescribed in Connecticut in 1708, in Pennsylvania in 1726, in Virginia in 1732

John Adams, writing to William Cushing in 1756, expressed a low estimate of the legal profession: \

“Let us look upon a lawyer. In the beginning of life we see him fumbling and raking amidst the rubbish of writs, indictments, pleas, ejectments, enfiefed, illatebration and one thousand other lignum vitae words which have neither harmony nor meaning. When he gets into business, he often foments more quarrels than he composes, and enriches himself at the expense of impoverishing others more honest and deserving than himself. Besides, the noise and fume of Courts and the labour of inquiring into and pleading dry and difficult cases have very few charms in my eyes. The study of law is indeed an avenue to the more important offices of the State and the happiness of the human society is an object worth the pursuit of any man. But the acquisitions of these important offices depends upon many circumstances of birth and of fortune, not to mention capacity, which I have not, and I can have no hopes of being useful that way.” (1)

And even as late as 1758, Adams, having finally decided to adopt the profession which he had thus condemned, stated that he

“found the practice of law was grasped into the hands of deputy sheriffs, pettifoggers, and even constables, who filled all the writs upon bonds, promissory notes and accounts, and received the fees established for lawyers, and stirred up many unnecessary suits.”

(1) Published in Nantucket Gazette (1817)