History of the American BAR

Chapter VI

New England Colonial BAR

CONNECTICUT

The development of the law and of the Bar in Connecticut followed exactly, step by step, that of Massachusetts.

Of the leaders in its settlement in 1636-1637, only three were men educated in the law,- Roger Ludlow, an Oxford graduate, a student in the Inner Temple in 1612, a member of the Court of Assistants in Massachusetts; Governor John Haynes, a man “very learned in the laws of England;” and Governor John Winthrop the younger, a barrister of the Inner Temple in 1624. With these exceptions, there are no records of the existence of any trained lawyers in Connecticut during the Century.

The first American written constitution, known as the “Fundamental Orders," was prepared by Ludlow in 1639; and in 1650 he drafted, at the request of the General Assembly, a Body of Lawes in seventy-seven sections, fourteen of which were taken from the Massachusetts Body of Liberties, the rest being the fruit of his own learning. This code, which showed great ability, originality and research, became the foundation of all law in Connecticut.

The general attitude towards the English law entertained by both the settlements which made up the Colony of Connecticut was much the same as that of Massachusetts; and may be expressed by the resolution framed by the freemen of the New Haven settlement, in 1639:

“That the words of God shall be the onely rule to be attended unto in ordering the aftayres of government in this plantation."

The sole court at first consisted of the General Court or Assembly, composed of the Governor, Deputy-Governors, the twelve Assistants (or Councillors), elected at large and constituting the higher branch of the Legislature, and the Representatives or lower branch. After the Royal charter of 1662 the Governor, Deputy-Governor and at least six of the twelve Assistants exercised all the judicial powers of the General Court, and were called the Court of Assistants. It was not until 1710 that a separate Superior Court was constituted, with a Chief Justice and four justices (usually elected from the Assistants). The General Assembly, however, still continued as a final Court of Appeal.

As a result of the elective system in choosing the judges, they were seldom trained lawyers; and even when they had received any legal education, they had frequently been first brought up in some other trade or profession. Thus, Roger Wolcott, who was Chief Justice in 1741, was originally a weaver; Jonathan Trumbull, a most distinguished Chief Justice from 1766 to 1769, was first a minister, and later a merchant, only incidentally studying law.(1) This condition of affairs prevailed even after the War of the Revolution; for Oliver Ellsworth, who was a judge of the Superior Court in 1784 and who became Chief Justice of the Supreme Court of the United States in 1796, studied first for the ministry,(2) as did Jesse Root, who was Chief Justice in 1796.

With a court constituted largely of laymen, it was natural that there should be little pleading of any kind in—


(1) Born in 1710, a graduate of Harvard in 1727. So great was his sagacity and ability, that during his long Governorship of the State (1769-1784), Washington's constant reliance on his advice, taking the form of "we must consult Brother Jonathan," became the foundation of that nickname for the United States.
(2) Born in 1745, studied at Yale 1762-1764, a Princeton graduate in 1766.


—law suits; and there were no statutes prescribing forms until 1709, 1720 and 173I.

Under all these circumstances, the Bar developed even later than in Massachusetts. In 1667, the General Court prohibited “all persons from pleading as attorneys in behalf of any person that is charged or prosecuted for delinquency (except he speak directly to matter of law and with leave from the authority present)” under fine of ten shillings, or the stocks for one hour.

In 1708, an act was passed, regulating the admissions of attorneys to practise, and providing that:

"No person except in his own case, shall be admitted to make any plea at the Bar without being first approved of by the court before whom the plea is to be made, nor until he shall take in the said court the following oath, viz.: '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 court as to the client. So help you God.' "(1)

This law required authority from the court in each particular case; and no statute providing for the general admission of attorneys existed until 1750.

In 1725, an act was passed, taxing all persons practising as attorneys in the Colony, “for their faculty,” by which those who were “the least practitioners” were to be set in the list for fifty pounds, and others “according to their practise.”


(1) This form of oath is substantially the same as that in use in Massachusetts, and was derived from that in use in England in 1649.


NEW HAMPSHIRE

In New Hampshire no regular courts existed at all until 1641, when the Colony was united to Massachusetts, and came under its laws. When it was made a Royal Province in1679, the President and Council acted as the court, with appeal to the General Assembly.

Richard Martyn, the first Chief Justice of the Superior Court of Judicature, in 1693, was a merchant without legal education.

In 1699, the Superior Court of Judicature was reorganized; but no one of its judges were lawyers–John Hinckes, Chief Justice, Peter Coffin, John Gerrish and John Plaisted. Inferior Courts of Common Pleas and Quarterly Courts of Sessions were also constituted in 1699. No practising attorney was appointed to the Bench until, in 1754, Theodore Atkinson, who had been a clerk of the Court of Common Pleas in Massachusetts and admitted to the Bar there in 1731, became the first Chief Justice with any legal training.

Josiah Bartlett, a physician, was Livermore’s associate, of whom it was said, that “when the law was with the plaintiff, and equity seemed to him on the other side, he was sure to pronounce in favor of equity." John Dudley, the most prominent of the associate judges from 1785 to 1797, was a farmer and trader; and his style of charging the jury has been quoted as follows:

"Gentlemen of the jury, the lawyers have talked to you of law. It is not the law we want, but justice. They would govern us by the Common Law of England. Trust me, gentlemen, Common sense is a much safer guide for us, the common sense of Raymond, Exeter and the other towns which have sent us here to try this case between two of our neighbors. It is our business to do justice between the parties not by any quirks of the law out of Coke or Blackstone – books that I never read and never will but by common sense as between man and man."

In one case, in which Jeremiah Mason had filed a demurrer, Judge Dudley said that “demurrers were no doubt an invention of the Bar to prevent justice, a part of the Common Law procedure," but that he had always “thought them a cursed cheat." “Let me advise you, young man,” he added, “not to come here with your newfangled law C you must try your cases as others do, by the court and jury.”

William Plumer thus describes the condition of the courts before the Revolution:

“Under the colonial government, causes of importance were carried up, for decision in the last resort, to the Governor and Council, with the right, in certain cases–a right seldom claimed– of appeal to the King in Council. As the executive functionaries were not generally lawyers, and the titular judges were often from other professions than the legal, they were not much influenced in their decisions by any known principles of established law. So much, indeed, was the result supposed to depend upon the favor or aversion of the court, that presents from suitors to the judges were not uncommon, nor, perhaps, unexpected.

MAINE

In Maine, Thomas Gorges, the head of the Colonial Government, was an English barrister, a practising lawyer and the only one in the Colony during the Seventeenth Century. The General Court at first tried all criminal and civil cases; later it established two inferior courts, which existed Until 1692, when the Colony was incorporated into the Royal Province of Massachusetts, and came under its judicial system.

It was not until 1770 that there was a resident lawyer practising in the Maine courts- Noah Emery of Kittery, brought up as a cooper, but who later studied law.

As late as 1770, the only educated lawyers residing in Maine were David Sewall, Theophilus Bradbury, John Sullivan, James Sullivan, William Cushing and David Wyer.

RHODE ISLAND

In Rhode Island, there was at first no distinction between the legislative and judicial branches of government. Under the early compact of 1638, a judge and three elders were chosen “who should govern according to the general rule of the word of God." The next year, a Governor and eight Assistants formed the General Court, having both judicial and administrative powers. When the charter of 1647 was granted, a President and four Assistants, one from each town, constituted a General Court of Trials. Under the Royal charter of 1662-1664 and until 1747-1749, the Governor, Deputy-Governor and ten elective Assistants exercised the judicial powers. It was not until 1747 that the judiciary was recognized by act of the General Assembly as a separate branch of the government. The Court then established consisted of a Chief Justice and four “judicious and skilful persons” chosen by the General Assembly, generally from among the ten Assistants (or magistrates).(1)

At no time was knowledge of the law considered essential to the members of the Court; and the judge, because of his ignorance, did not even charge the jury.(2)

In 1699, the Earl of Bellomont, in his report to the Lords of Trade, said:

“Thus courts of justice are held by the ‘Governor and Assistants who sit as judges therein, more for constituting the court than for searching out the right of the causes coming before them or delivering their opinion on points of law (whereof it is said they know very little). They give no directions to the jury nor sum up the evidences to them, pointing unto the issue which they are to try. Their proceedings are very unmethodical, no wise agreeable to the


(1) Judicial System in Rhode Island, by Amasa M. Eaton, Yale Law Journal, Vol. XIV; Early Rhode Island, by William B. Weeden (I910).
(2) This custom remained unchanged in Rhode Island until 1833.


course and practice of the courts in England, and many times arbitrary and contrary to the laws of the place; as is affirmed by the attorneys at law that have sometimes practiced in their court.”

The first Chief Justice of Rhode Island, Gideon Cowell, in 1747, was not a lawyer; the second, Joshua Babcock (a Yale graduate of 1724), was a physician. Stephen Hopkins, Chief Justice from 1747 to 1755, was a trained and able lawyer; but most of the judges during this Century were laymen, merchants or farmers.

As in Massachusetts and Connecticut, little deference was paid to the Common Law of England, and the lack of legal education in the judiciary rendered the citing of English precedents in the courts of little avail. A full code of law was adopted in 1647, embodying an elaborate classification of crimes, and providing that “in all other matters not forbidden by the code, all men may walk as their conscience persuades them.” That alone was declared to be law which was made such by the Assembly. This meant the exclusion of English law, when unconfirmed by the Assembly)

The real Bar of Rhode Island, however, began with James Burrill and Tristam Burges, at the opening of the Nineteenth Century.