History of the American BAR

Chapter I

English Law, Law Books and Lawyers in the Seventeenth Century

While the Common Law on its civil side had begun, by 1620, to provide fairly complete and even-handed justice as between one private citizen and another, (1) on its criminal side it was a source of horror to lovers of liberty and right, throughout the Seventeenth Century. Great judges, as a rule, were hardly possible under the arbitrary rule of the Stuarts or of Cromwell. The State Trials were trials only in name.

In 1637, about the time when Connecticut was being settled, and when the first lawyer of record appeared in Maryland, John Hampden was being tried in England for refusing to pay ship money.

For two hundred years after the Norman Conquest legal proceedings were almost entirely in the hands of the clergy as the only class versed in reading and in knowledge of civil and canon law.

The first learned lay lawyers appeared in the reign of King John; and finally, in Henry III’s reign, the Pope forbade his clergy to study temporal law or to sit in lay courts.(1) Lawyers as a separate class in the community were a gradual development. It was not until 1235 that parties to a suit were formally permitted by statute to appear by attorney; and for many years no attorney could appear for a party except by special license of the King. In 1275, the First Statute of Westminster recognized and extended appearance by attorney; and in 1283, a statute allowed attorneys made by written warrant to appear in the absence of the parties.(2) By 1290 there appears to have been a well recognized class of pleaders, termed serjeants, who alone pleaded the cases in court. The serjeants, therefore, are the most ancient order of the profession. They had the exclusive practise in the Court of Common Pleas, and from their ranks the judges were always chosen.

(1) Legal Profession in England,— American Law Review, Vol. XIX, 677. It is curious to find this history reproduced in the early days of Massachusetts when the clergy again were the preponderating factor in the law.
(2) See The Golden Age of the Common Law, by John M. Zane, Illinois Law Rev. (1907)

It is interesting to note that the first statute in England on the subject of conspiracy, enacted in 1305, referred to conspiracies to maintain lawsuits. It defined conspirators as “they that do confeder or bind themselves together by oath, covenant, or other alliance,” either to indict or maintain lawsuits; and “such as maintain men in the countrie with liveries or fees for to maintain their malicious enterprises, – and this extends as well to the takers as to the givers.” In the fear of the evil practises which this statute shows must have been prevalent at that early time, there may be seen the prototype of conditions which gave rise to so much legislation against fee-taking lawyers in the American Colonies during the Seventeenth Century.

The fact that the English Parliament was at this time, in reality, “The High Court of Parliament” – a law declaring, as well as a law-making, body–is notably shown by a statute, in 1362, prohibiting lawyers from sitting in that body, because of their interest and activity in stirring up lawsuits over which they might later be in a position to act.(1) This same legislation was enacted for the same reason in the Colonies of Massachusetts and Rhode Island, three hundred years later.(1)

(1) See The High Court of Parliament, by C.H. McIlwain, esp. pp. 214-216 (1910)

In 1606, by statute, none were to be admitted as attorneys in the courts except those brought up in the Inns “well practised and skilled and of an honest disposition.” The only persons, therefore, henceforth entitled and admitted to practise in the courts were those who had been “called” as barristers by the “benchers” or officers of one of the four Inns of Court. Attorneys (officers of the Common Law Courts) and solicitors (officers of the Courts of Chancery) could only draw writs and papers, and instruct the barristers as to the matter in litigation; and they were generally graduates of the Inns of Chancery.