History of the American BAR

Introduction

Law Without Lawyers

NOTWITHSTANDING the various American Colonies were founded separately, each in its own peculiar mode, and were maintained as separate governments, having slight connection with each other in administration and little intercommunication in trade or otherwise until the early years of the Eighteenth Century, their usages and their institutions developed on closely parallel lines. In nothing is this more marked than in the history of their judicial organizations and of the constitution of their legal Bars. In all the Colonies, the General Assembly or Legislature at first constituted the sole court of law; later, the Governor and his Deputies or Assistants; and in many Colonies it was not until half a century after settlement that separate and independent courts were instituted. In all the Colonies, the courts were composed of laymen, with the possible exception of the Chief Justice. It was not until the era of the War of the Revolution that it was deemed necessary or even advisable to have judges learned in the law. In most of the Colonies, the Chief Justice, and through him the courts, were subject in a great degree to the control of the Royal Governors. In none of the Colonies were there any published reports of decided cases, prior to the Revolution.

In all of the Colonies, the question of whether the Common Law was to be accepted as the basis of the Colonial Law was a live issue. Some Colonial Legislatures and courts very early accepted the Common Law as binding. In others, the right of the Colony to institute or adopt the Common Law, or such parts of it as they saw fit, was earnestly maintained; and it cannot be said that it was generally accepted as binding until many years after the close of the Seventeenth Century. Nothing, however, in the early legal history of the Colonies is more striking than the uniformly low position held in the community by the members of the legal profession, and the slight part which they played in the development of the country until nearly the middle of the Eighteenth Century. In every one of the Colonies, practically throughout the Seventeenth Century, a lawyer or attorney was a character of disrepute and of suspicion, of whose standing or power in the community the ruling class, whether it was the clergy as in New England, or the merchants as in New York, Maryland and Virginia, or the Quakers as in Pennsylvania, was extremely jealous. In many of the Colonies, persons acting as attorneys were forbidden to receive any fee; in some, all paid attorneys were barred from the Courts; in all, they were subjected to the most rigid restrictions as to fees and procedure.(1) It is perhaps fair, however, in reviewing the constant legislation against attorneys, to bear in mind that the word “attorney,” as used in early records of Colonial cases and statutes, did not imply necessarily a man bred to the law or who made its practise an exclusive employment. These


(1) For a work treating of lawyers in the various Colonies, see The Lawyers' Official Oath and Office, by Josiah H. Benton (1909).


“attorneys” were very largely traders, factors, land speculators and laymen of clever penmanship and easy volubility, whom parties employed to appear and talk for them in the courts. The few persons who acted as professional attorneys were at first mostly pettifoggers, or minor court Officers such as deputy sheriffs, clerks and justices, who stirred up litigation for the sake of the petty court fees. This latter practise became such an evil that in most of the Colonies statutes were passed prohibiting such persons acting as attorneys.

Nevertheless, after making due allowance for the differences in the use of the word “attorney,” the fact remains that the development of the law as a profession and of lawyers as an influential class in the community was a matter of remarkably slow growth in the American Colonies. The responsibility for this condition may be attributed to seven different factors, varying in weight of influence in each Colony, all of which will be clearly shown, as the history of each Colonial Bar is separately described in this book. These factors may be summed up as follows. In the first place, law as a science was in so rigid a condition that it failed to touch the popular life. The Common Law was still feudal and tyrannical. The people felt the restrictions it imposed, and knew little of the liberties it guaranteed. As has been well said:

“It is not altogether strange that our law at that time should seem to a plain Puritan to be a dark and knavish business; for it was still heavily encumbered with the formalism of the Middle Ages. It was, indeed, already, like Milton’s lion, ‘pawing to get free its hinder parts;’ and there was a sort of truth in Coke’s dithyrambic praise of it, then but recently published, that ‘reason is the life of the law – nay, the common law itself is nothing else but reason;’ but it was the truth of prophecy, and not the truth of fact. The law also was then mainly hidden away from laymen and wrapped in a foreign tongue; and it was taught at the Inns of Court in the rudest way- ‘hanc rigidam Mineryam,’ said Sir Henry Spelman, a contemporary of our founders, ‘ferreis amplexibus coercendam.’ ‘My mother,’ said Spelman, ‘sent me to London to begin upon our law’ (1570), ‘Cujus vestibulum salutassem reperissemque linguam peregrinam, dialecturn barbarum, methodum inconcinnam, molem non ingentem solum sed perpetuis humeris sustinendam, excidit mihi (fateor) animus.'” (1)

In the second place, lawyers, as the instruments through which the subtleties and iniquities of the Common Law were enforced, were highly unpopular as a class in England. John Milton expressed the general low opinion of the aims of the profession thus:

“Most men are allured to the trade of law, grounding their purposes not on the prudent and heavenly contemplation of justice and equity which was never taught them, but on the promising and pleasing thoughts of litigious terms, fat contentions and flowing fees."

The following sentiments expressed in an anonymous book published in England in 1677, entitled A Discourse on The Rise and Power of Parliament, were echoed in the Colonies:

There was Law before Lawyers; there was a time when the Common Customs of the land were sufficient to secure Meum and Tuum. What has made it since so difficult? Nothing but the Comments of Lawyers confounding the Text and writhing the Laws, like a Nose of Wax, to what Figure best serves their purpose.

And the lawyer’s reputation in London may be estimated to some extent by the titles of numerous tracts printed in the Seventeenth Century, such as the following: The Downfall


(1) Speech of James B. Thayer at the 250th Commemoration of Harvard College, Nov.' 5, 1886.


of Unjust Lawyers; Doomsday Drawing Near with Thunder and Lightning for Lawyers (1645); A Rod for Lawyers Who are Hereby declared Robbers and Deceivers of the Nation; Essay Wherein is Described the Lawyers, Smugglers and Officers Frauds (1659). In the minds of many Englishmen, moreover, the lawyer was synonymous with the cringing Attorneys-General and Solicitors-General of the Crown and the arbitrary Justices of the king’s Court, all bent on the conviction of those who opposed the King’s prerogatives, and twisting the law to secure convictions.

The third impediment in a lawyer’s path was the scanty materials at hand in the Colonies for the study of law, the scarcity of printed law books and reports, and the lack of schools of law. Even in England at the end of the Seventeenth Century, hardly more than seventy law books had been published, of which not more than ten or fifteen were known in the Colonies, and less than one hundred volumes of law reports, of which not over thirty were in use in the Colonies.

In the fourth place, lawyers were obliged to face the hostility of religious elements in the community. In Pennsylvania, the Quakers were opposed to anything of a litigious tendency. In New England, the clergy for a long time maintained a complete supremacy in the magistracy and in the courts. “During the period from 1620 to 1692,” said a writer in the North American Review, in 1829, “no trace can be found of law as a science or profession. The clergy possessed, as in England, much of the legal knowledge of the community.” (1) It was to their clergymen that the colonists looked to guide their new governments, and in their clergymen, they believed, lay all that was necessary and proper for their lawful and righteous government. It followed, therefore, that the “Word of God” played a greater part in progress and practise of the law than the words of Bracton, Littleton or Coke.


(1) See review of American Jurist, Vol I, in North American Law Review, Vol.XIX (Oct.1829).


The development of the American lawyer was thus retarded by the influence of all these factors which, however, varied in degree of effect in each separate Colony. In New England, however, the lack of educated lawyers in the Seventeenth Century is especially attributable to still another cause- the absence of any respect for, or binding authority of, the English Common Law.(1)

Although it has so frequently been announced in judicial decisions that, “Our ancestors when they came into this new world claimed the Common Law as their birthright and brought it with them, except such parts as were judged inapplicable to their new state and condition–the Common Law of their native country as it was amended or altered by English statutes in force at the time of their immigration,” (2)

it was never historically true that either in Massachusetts, Connecticut or Rhode Island did the colonists & So far from being proud of it “as their birthright,” they were, in fact, decidedly anxious to escape from it and from the ideas connected with it in their mind.

The Common Law was neither popular nor a source of pride at this time, even in England.(3) It was a period when


(1) See especially English Common Law in The Early American Colonies, by Paul F. Reinsch (1899).
(2) Parsons, C. J., in Commonwealth v. Knowlton, a Mass. p. 354 (1807). See Shaw, C. J., in Young v. Emery, 16 Pick. p. 110 (1833). And see Judge Story in his Commentaries on the Constitution, and in Van Ness v. Pacard, 2 Peters, 144 (1829).
(3) signs of the dissatisfaction with the state of the law in England may be seen from the flood of pamphlets demanding its reform, such as: Reformation Proceedings at Law, by Thomas Fields in 1645; Survey of the English Laws, their Unsoundness and Corruption Discovered, by F. W. in I652; England's Balme, or Proposals by way of Grievance and Remedy towards the Regulation of Law and Better Administration of Justice, by William Sheppard in 1657; Certain Proposals for Regulating the Law, by John Shepheard in 1656; Perspicuous Compendium of Several Irregularities and Abuses in Present Practice of Common Laws of England, by D. W., in 1656; Warr's The Corruption and Deficiency of the Laws of England; Jones' An Experimental Essay touching the Reformation of the Laws of England.


Sir Edward Coke had been removed as Chief Justice of King’s Bench by James I, in 1616. The judges held office only at the King’s pleasure. The Star Chamber Court had flourished under Charles I. The Chancellors were endeavoring to mitigate some of the harshness and irrationality and technicality of the Common Law courts. The old feudal tenures were extant, with all their follies and burdens.

The fact is, that the English Common Law, from 1620 to 1700, was in force in New England only so far as it was specifically adopted by statute – or so far as the colonists, by custom, had assented to its binding force.

Thus, in a case in Massachusetts, as late as 1687, the defendant pleaded that the Magna Charta of England and the statute law, “secure the subjects’ properties and estates …. To which was replied by one of the Judges, the rest by silence assenting, ‘We must not think the laws of England follow us to the ends of the earth or whither we went.'” (1)

Chief Justice Atwood, who visited Boston in 1700, in his report to the Lords of Trade, states that he had “publicly exposed the argument of one of the Boston clergy that they were not bound in conscience to obey the laws of England; “(2) and he notes that the methods of the courts were “abhorent from the Laws of England and all other nations.”

John Adams in his Novanglus said, even in 1774:

“How then do we New Englanders derive our laws. I say not from Parliament, not from the Common Law; but


(1) Judicial History of Massachusetts, by Emory Washburn, p. xo6.
(2) Documents relative to Colonial History of New York, Vol. IV, p. 959.


from the law of nature and the compact made with the King in our charter, our ancestors were entitled to the Common Law of England when they emigrated; that is to say to as much of it as they pleased to adopt and no more. They were not bound or obliged to submit to it unless they chose.” (1)

Connecticut was extremely independent of the Common Law; and as Robert Quary reported to the Board of Trade in England: “The people are of a very turbulent, factious and uneasy temper. I cannot give their character better than by telling your Lordships that they have made a body of laws for their government which are printed; the first of which is that no law of England shall be in force in their government till made so by act of their own.” (2) In the famous case of Winthrop v. Lechmere, in 1728, the Colony’s agent in London was instructed to argue that English Common Law could be binding beyond the sea, only in case it had been accepted by the colonists’ own choice. “The Common Law always hath its limits environ’d by the sea.” (3)

In fact, Connecticut never adopted the Common Law, even by statute. Its recognition grew up through usage and


(1) Adams' Life and Works, Vol. IV, p. 122
 Thomas Jefferson said in a letter to Attorney-General Rodney Sept. 55, 1810, speaking of Levi Lincoln of Massachusetts as a possible successor to Cushing as Chief Justice of the United States Supreme Court: "He is not thought to be an able common lawyer, but there is not and never was an able one in the New England States. Their system is sui generis, in which the common law is little attended to."
 See Jefferson's Complete Works, Vol. V, p. 546. As to Common Law in Massachusetts Colony, see Tucket's Blackstone, Appendix, Vol. I, p. 397 et seq.
(2) Quoted in The Connecticut Intestacy Law, by Charles M. Andrews, Yale Law Journal, Vol. III, 189.
(3) Governor Talcott Papers, Vol. II, Appendix. These instructions were drawn up by John Read, afterwards the leader of the Bar in Boston, in the early Eighteenth Century.


custom only, and was coincident with the first professional education of lawyers and judges. As the Bar grew to be composed of men familiar with the law of England and its reported cases and commentaries, the legal character of the bench improved, and the rules of Common Law gradually b~came, by judicial application, the law of Connecticut. But Judge Jesse Root, in the preface to the first volume of his Reports, as late as 1798, denied that English Law had ever been applicable, per se:

“Our ancestors who emigrated from England to America were possessed of the knowledge of the laws and jurisprudence of that country; but were free from any obligations of subjection to them. The laws of England had no authority over them to bind their persons, nor were they in any measure applicable to their condition and circumstances here. . . . In every respect their laws were inapplicable to an infant country or state, where the government was in the people, and which had virtue for its principle and the public good for its object and end; where the tenure of land was free and absolute, the objects of trade few, and the commission of crimes rare.” (1)

In Rhode Island, it was not until 1770 that by statute the Common Law was formally adopted, as follows:

“In all actions, matters, causes and things whatsoever where no particular law of the Colony is made to decide and determine the same, then in all such cases the. Law of England shall be put in force to issue, determine and decide the same, any usage, custom or law to the contrary notwithstanding.”

The real fact is, that during these years, 1620-1700, the colonists were making a Common Law for themselves; and their usages and customs, and the expedients to which they were forced, in order to adapt their rules of life to the surroundings and the time, gradually hardened into positive rules of law. (2)


(1) See Zephaniah Swift's System of Laws of Connecticut; J; Peter's History of Connecticut.
(2) See Parsons, C.J., In Com.v Knowlton. 2 Mass. P. 534 (1805)


And the exact status of American law was strikingly expressed by Chief Justice William Tilghman of Pennsylvania, in 1813, in Poor v. Greene (5 Binney, 554):

“Every country has its Common Law. Ours is composed partly of the Common Law of England and partly of our own usages. When our ancestors emigrated from England, they took with them such of the English principles as were convenient for the situation in which they were about to place themselves. It required time and experience to ascertain how much of the English law would be suitable to this country. By degrees, as circumstances demanded, we adopted the English usages, or substituted others better suited to our wants, till at length before the time of the Revolution we had formed a system of our own.”

And by Judge John Bannister Gibson in Lyle v.. Richards (9 Serg. & Rawle, 322) in 1823:

“To a greater or less extent there necessarily exists in every country a species of legislation by the people them selves, which in England and in this country is the foundation of the Common Law itself, or in other words general custom obtaining by common consent ….In the infancy of this Colony it produced not only a modification of some of the rules of the Common Law, but a total rejection of many of the rest.”