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over matters of property were heard before the Governor and his Council, or the General Court, advocates required a knowledge of politics rather than of law.

The trained lawyers on this side of the Atlantic were few. Of those who had studied at the Inns of Court, Massachusetts had probably more than any other colony,' but they had gone there from other motives than that of pursuing the legal profession. It made them better magistrates, and helped them to office; but perhaps for that very reason they were of opinion that, before competent Judges, causes could be tried quite as well without the intervention of a bar between the party and the State.2

In the Massachusetts Body of Liberties, adopted in 1641, it was expressly provided that those who pleaded causes for others should receive no compensation for it. Not improbably this clause was inserted to get rid of the only practising attorney then in the colony, a well-read man and a skilful conveyancer, but whom the General Court, not long before, had been forced to call to account for tampering with the jury in a cause before the Quarter-Court, in which he was of counsel. Practising lawyers were also debarred from a seat in the General Court. That being the principal tribunal for the trial of litigated controversies, it was thought unfit to have one sit in it as Judge, who might the next day appear as counsel for one of the parties in an inferior court.5

Virginia at first contented herself with limiting the fees of attorneys for services in court, but in 1645 followed Massachusetts in excluding them altogether from pleading causes for remuneration, and maintained this policy until 1662. She had rather a numerous bar by the close of the seven

1 Winthrop, Bellingham, Humphrey, Dudley, Downing, Ward. Note Book of Thomas Lechford, xv; Hildreth's Hist. of the United States, I. 211.

2 Winthrop, History, II. 36.


8 This was drawn by Rev. Nathaniel Ward, who had been an outer barrister" in England before taking orders in the church. Palfrey, Hist. of New England, II. 26.

4 Thomas Lechford of Clement's Inn. See his Note Book, xxi, 182.

5 Hutchinson's Hist. of Massachusetts, III. 104.


teenth century, but few had received anything in the nature of a legal education.1

Connecticut had the good fortune to number among her first planters an English barrister of great ability, Roger Ludlow. He framed her original Constitution, or "Fundamental Orders," and, while borrowing a good deal from the "Body of Liberties" of Massachusetts, did not incorporate the provision excluding "mercenary attorneys." After he left the colony for Virginia, laws were adopted forbidding their employment for the defence in proceedings for criminal misdemeanors, and in 1667 this was enforced by a penalty of a fine or an hour in the stocks, with an exception in favor of any that should "speake directly to matter of law & with leave from yo authority p'sent."2 Early in the next century, however, she made provision for the admission of attorneys as regular officers of the court, the number being for a few years limited to not exceeding three in the largest county, nor two in each of the others.3

If there were few educated lawyers in the country during the early part of the seventeenth century, there were still fewer at the beginning of the next. Those of the original immigrants who had received their training, such as it was, in England had died or gone back, and there had been slender opportunity on our own soil for giving thorough instruction in any subject, except it might be theology. Harvard was long the sole source of supply, and when William and Mary, and Yale, came in to reinforce her, their graduates, few in number at best, naturally found their place in the ministry or in public office, rather than in a calling not yet recognized as a distinct and honorable profession.1 In North Carolina it was thought necessary to provide a remedy against incompetent practitioners by making attor

1 Hildreth, Hist. of the United States, I. 337, 516; William and Mary College Quarterly, VIII. 228.

2 Colonial Records, II. 59.

8 Judicial and Civil History of Connecticut, 184. Hildreth, Hist. of the United States, II. 513.

neys liable for double damages to clients suffering from their negligent management of a cause. The valuable records of early lawsuits, published in 1809, under the name of Harris & McHenry's Reports, show that there were from the beginning of the eighteenth century well-read and able lawyers in Maryland, but their number was exceedingly small.

In every colony but Massachusetts the percentage of college graduates to the total population was very inconsiderable. As late as 1745 there were but fifteen of them in the whole province of New York.2 In Massachusetts herself, John Read was the only native-born lawyer who rose to real distinction before 1750.

In passing, however, from the first to the second half of the century, there came a turn in the tide for the bar. George Chalmers came from Edinburgh to Baltimore, and there were other lawyers of eminence in both Maryland and Pennsylvania. John Adams, writing in 1756, speaks of law students as very numerous, and his own line of reading shows that there were some of them at least who built on solid and scholarly foundations.5


As the Revolution drew on, it was found, as early as 1765, that there were lawyers enough in New York to make themselves recognized among the forces to be reckoned with by the government in the endeavor to enforce the Stamp Act, although Sir William Johnson wrote to a friend that the motive of their opposition was the apprehension that their "business must decrease from the duties on Law proceedings. 996 In this colony attorneys at law were appointed by special license from the Governor. One hundred and thirty-six had been thus admitted to practice during the sixty-eight years

1 This was in 1743. Stat. of N. C., Rev. of 1821, I. 169.

2 The Yale Book, I. 395; Sanderson, Lives of the Signers of the Declaration of Independence, III. 171.

* Chalmers, in his Opinions of Lawyers, quotes several of American composition on colonial questions.

Life and Works, I. 37.

5 Id., I. 46; II. 46, 48, 50, 80, 103, 146.

6 Documentary History of New York, II. 823.

immediately preceding the Revolution,1 or an average of two each year. In the South, several of those who took a leading part in the Revolution had been educated for the bar in the Inns of Court at London; and during its course Jefferson, as a visitor of William and Mary College, introduced there a chair of Law and Police, which was filled by one of the most eminent Judges of the day, Chancellor Wythe, in whose first class, formed in 1779, John Marshall studied the principles of the science which he was afterwards to expound as Chief Justice of the United States.3

Not, however, till independence had been actually accomplished did the American lawyer, as a lawyer, come to occupy a large place in the public eye. He attained it then, in no small measure, because he had now no competition to meet from the English bar, and this because thenceforward American causes were to be tried at home. There were also, now, new questions to be decided, growing out of the Revolutionary war. The rights of British subjects to reclaim confiscated property were pressed in every State, and the points involved were argued here with at least as much ability and learning as they were, during the same period, at Westminster.4

The proceedings of a legal character in which the colonies. had always been most interested were those which took place in England concerning their own charters. These were not matters which they could handle for themselves, and their agents at London were obliged to rely on English counsel. The correspondence, however, between their governors and the home authorities, as well as the reports of the colony agents, kept those who were at all in public life somewhat familiar with the legal principles which were involved.

1 In the Matter of Cooper, 22 New York Reports, 67, 79.

2 Sanderson, Lives of the Signers, III. 11; IV. 5.

3 Papers of the American Historical Association, IV. 133 et seq.

4 Compare, for instance, Dulany v. Wells, 3 Harris & McHenry's (Maryland) Reports, 20, and Georgia v. Brailsford, Dallas' United States Reports, 1, with Wright v. Nutt, 1 H. Blackstone's Reports, 136, and Ogden v. Folliott, 3 Durnford & East's Reports, 726.

the colonies

erning States.

All the earlier colonial charters were such as were appropriate for the regulation of a trading adventure, or land The growth of speculation. Those to whom they were granted into self-gov- occupied the relation of shareholders, and elected their boards of direction and government to sit in England. Long before 1701, these boards in most of the colonies had been replaced by local legislatures, meeting on American soil, and the authority of foreign proprietaries was soon to be withdrawn in all. The crown law officers, however, were disposed to minimize the legislative powers thus conferred. Massachusetts, they held in 1703, could not set up a separate court of equity, although her charter authorized her to constitute courts of record for the determination of all manner of pleas and causes, "whether the said pleas be real, personal or mixed.”1

Appeals to

colonial judg


It is not surprising that English and American lawyers should have been inclined to look at the powers of the colonial assemblies and courts in very different ways. England, from The doings of the original companies, under which the British plantations here were made, were, of course, as they took place in England, fully subject to control by the English courts. But until the eighteenth century, as to transactions on American soil, some of the colonial governments denied, not unsuccessfully, any appeal from their sentences to the King in Council.2

Partly in consequence of this, in 1701 a bill was brought into Parliament to restore to the crown direct authority over all the American colonies not then under royal Governors.* It was defeated, but early in the reign of George I. a similar measure was again pressed. In the "cases" filed then by some of the colonial agents the fundamental difference between the republican and the proprietary systems of colonial

1 Chalmers, Opinions of Lawyers, 195.

2 Pitkin, History of the United States, I. 125.

8 See the Address of the House of Lords in 1705 for the Relief of the Province of Carolina, for a vivid statement of the grievances under the old system. Report of the American Historical Association for 1892, 28.

4 Pitkin, History of the United States, I. 124.

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