The Bench and Bar

In the seventeenth century, there were few lawyers and their status was problematic. Of the sixty-five men who landed at Plymouth in 1620, not one was a lawyer. The colony's first trained lawyer, Thomas Lechford, did little to instill enthusiasm. He was disbarred for trying to influence a jury. Antilawyer sentiment was pervasive elsewhere as well, and the "ancient English prejudice against lawyers secured new strength in America. ¹⁸ The framers of the Fundamental Constitutions of the Carolinas in 1669 declared it a "base and vile thing to plead for money or reward." ¹⁹ Connecticut and Virginia during a portion of the seventeenth century prohibited lawyers from practicing. Early lawyers were often laymen helping friends or women serving the legal interests of absent husbands.

Too much, however, should not be made of antilawyer sentiment. Since the Middle Ages lawyers had played an ever-increasing role in joining human activity to established rules of government, and they carried on this function in colonial society, especially as capitalism bloomed in the late seventeenth century. The legal practitioners of eighteenth-century America were important as agents of both social stability and economic coherence. Initially, most trained colonial lawyers came from the Inns of Court, but by the mid-eighteenth century a rough apprenticeship system emerged in which would-be lawyers studied with a practicing attorney or judge. There were no law schools, and the entire educational process had a pragmatic and dronelike quality.

Nonetheless, the rudiments of what would become the American legal profession appeared, stimulated by more than just crude opportunities for training. By legislative

-22-

enactment, executive decree, and court order every colony bestowed on some persons the professional status of officers of the court. Thereafter an emerging hierarchy of lawyers appeared. The stratification was relatively simple: lawyers residing in and operating from eighteenth-century colonial capitals believed they were superior to county court attorneys. Economic growth provided a further impetus. The scarcity of specie made credit relations vital to the success of the colonial economies. Lawyers busied themselves arbitrating these arrangements. Economic necessity stimulated a demand for skilled interpreters of the labyrinth of provincial and local economic regulatory legislation. It also enabled colonial lawyers to begin to Americanize the substantive portions of the English common law.

Imperial demands in the eighteenth century for fuller allegiance to the English common law system also abetted the institutionalization of the bar and eroded the informal character of early American law practice. People caught up in the legal system increasingly thought first to seek counsel, and their actions merely confirmed the need for more and better-trained lawyers. Moreover, the rise of social discord in eighteenth-century Massachusetts accompanied a decline in legal fees. As competent legal counsel became more important it also became more available. Lawyers also dressed to reflect their new status: by the 1760s in both New York and Massachusetts lawyers wore robes and wigs as they performed their courtroom duties. In those colonies and others, the formalization of the legal process meant that the legal system emerged as the standard for all forms of dispute settlement.

The colonial economy never generated sufficient legal business to bring about a division of the profession similar to that in England, where barristers (who practiced before the courts) and solicitors (who only provided legal advice) fielded highly technical legal disputes. American lawyers survived as generalists; they literally did not have the luxury of specialization. The absence in most colonies of explicit provisions for admission to the bar confirmed the tentative character of the legal profession.

The development of the colonial bench paralleled that of the bar. Early magistrates were often unschooled in the law. William Penn in 1681, for example, appointed Nicholas More, a London physician and husband of a wealthy Quaker, chief justice of Pennsylvania. The chief justice, however, brought to the bench ignorance of the law, personal arrogance, and avarice, a combination that prompted the Pennsylvania Assembly four years later to impeach him. The eighteenth-century colonial judiciary was more professional, a change induced by both English authorities and a bar anxious to practice before more competent judges. From the beginning of American legal history, the bar took a special interest in the judiciary, on whose behavior its livelihood depended.

The predominance of lay judges often meant that juries exercised important responsibilities in settling questions of law as well as fact. The celebrated trial of John Peter Zenger for seditious libel against the governor of New York in 1735 revealed, among other things, that a jury could disregard or interpret judicial instructions with some impunity. That jury found Zenger not guilty, although the judge's instructions left no doubt that it should have decided the opposite. Similarly, a Virginia statute in the seventeenth century provided that if jurors were not "clear" regarding a particular case, they might choose "in open Court to advise with any man they shall think fit to resolve or direct them, before they give in their verdict." ²⁰ Governor William Shirley of Massachusetts, himself a trained lawyer and a proponent of the adoption of English legal forms in colonies, acknowledged that juries were often powerful engines of local

-23-

interest. "A trial by jury," he complained, "is only trying one illicit trader by his fellows, or at least by his well-wishers." ²¹

The precarious state of the colonial judiciary stemmed from more than its indifferent legal training. Judges also lacked independence. The doctrine that the king had exclusive authority to erect courts made colonial judges agents of the Crown. Distance created an insuperable burden. "If that prerogative power was too distant when exercised from London," a historian has observed, "it was far too immediate when institutionalized under the auspices of the royal governors representing the king."²² The governors appointed most judges, but they did so for only limited terms. Parliament in 1701 provided good-behavior tenure for English judges, but that guarantee of independence, so essential to the functioning of the judiciary, never reached colonial America. The judiciary, as a result, was an item of political debate and compromise among contesting colonial factions. The Privy Council sealed the matter in 1761 when it decreed that no judicial commission was good unless it specifically stated that its holder served at "the pleasure of the crown." ²³

The independence of colonial judges was limited in another way. The lower houses of the assemblies in the eighteenth century grew increasingly restive with the exercise of judicial power, and they turned to impeachment to limit judicial influence. Unlike the earlier judicial impeachments--such as that against More in Pennsylvania, aimed at criminal wrongdoing in office--these new proceedings had important political overtones. Particularly significant were the impeachments and near-impeachments of Chester County Judge William Moore of Pennsylvania in 1758, Chief Justice Charles Shinner of South Carolina, and Chief Justice Peter Oliver of Massachusetts, both in 1774. In these cases impeachment became "a method of expressing the people's grievances (as enunciated in their assemblies) against imperial rules" rather than a means of chastising corruption in office. ²⁴

Date: 2015-01-29; view: 753