32

The Unspecialized Lawyer

IN 1758 when young John Adams consulted the leader of the Boston bar about the proper education of an American lawyer, the reply was an inquiry about Adams’ general education and his knowledge of rhetoric. “Then Mr. Gridley run a comparison between the business and studies of a lawyer, a gentleman of the bar in England and those of one here: a lawyer in this country must study common law, and civil law, and natural law, and admiralty law; and must do the duty of a counsellor, a lawyer, an attorney, a solicitor, and even of a scrivener; so that the difficulties of the profession are much greater here than in England.” In 17th- and 18th-century England, as Adams’ mentor knew, the legal profession was elaborately organized and stratified and these divisions reflected both English legal thinking and the prejudices of English society.

At the top stood the “barristers,” the aristocracy of the legal profession. Organized in their ancient “Inns of Court” in London near the High Courts, they possessed a monopoly over the practice in these courts. The “benchers” of Lincoln’s Inn, The Inner Temple, The Middle Temple, and Gray’s Inn from about the fifteenth century had held the power to admit to the bar; that is, to confer the right to be heard in court as a pleader. The English Civil War of the 17th century had scattered members of the Inns and interrupted their formal educational activities. Before the end of the 18th century even the requirement of a period of apprentice-residence had become a mere fiction. Still the Inns retained their monopoly.

But these gentlemanly barristers of the Inns offered only a small segment of the legal services of the community. Daily legal needs were met by at least two other quite distinct occupations. “Attorneys” were not authorized to plead in court but it was their function to set the machinery of the court in motion on behalf of a client. They were admitted to their monopoly by the judges of the courts in which they practiced, each court acquiring its own limited number of attorneys, who were not necessarily authorized to practice elsewhere. Another branch of the profession (called “solicitors”) were the private legal agents, who were neither authorized to plead in the High Courts nor to set lawsuits in motion, but who looked after routine legal matters for their clients. These solicitors were a varied lot: some were also attorneys, some were not; some flourished in the Courts of Chancery. They multiplied rapidly to serve the rising landed and commercial classes. One resentful barrister in the early 17th century complained that the solicitors “like the grasshoppers in Egypt, devour the whole land.” There were also the notaries, in their Scriveners’ Company, who prepared all legal documents which had to be authenticated by a seal, the patent agents, and still other minor specialists.

Basic was the social distinction which separated barristers or “counsellors”—who alone were gentlemen and thus members of a true “profession”—from all the others. “There ought always to be preserved,” the English judges ordered in 1614, “a difference between a counsellor at law, which is the principal person next unto the Serjeants and judges in administration of justice, and attorneys and solicitors which are but ministerial persons and of an inferior nature.” Solicitors had begun as mere agents, servants, or stewards; and attorneys were akin to tradesmen, since they supported themselves on the fees of individual customers. But it was from the ranks of barristers that the judges were drawn. Unlike tradesmen or craftsmen they did not receive “fees,” but rather “honoraria,” which neither then nor today are collectible by legal process.

To move all these fine distinctions across the ocean defied the efforts of even the most devout admirer of English institutions. The American uncertainty as to what really made a man a “gentleman” had blurred all the lines between high-tone “professions” and other occupations. Since there was no single center of appellate litigation in America, there was no one place where ambitious young pleaders and cadet-judges could learn their lessons. The higher colonial courts were dispersed into thirteen different headquarters, each with its slightly different laws. There was no American London where lawyers could consolidate their monopoly. Most important perhaps was the fact that for a long time legal business was too scarce to support so many specialties.

Whatever the reasons, there was no developed legal profession in any of the colonies before the mid-18th century. The ancient English prejudice against lawyers secured new strength in America. Despite the occasional outbursts in England against lawyers (as early as Jack Cade’s Rebellion in 1450 and as recently as the Civil War of the 17th century), they were not dislodged from power and privilege; the Inns of Court, the Scriveners’ Company, and other ancient guilds remained their strongholds. America had no such citadels of monopoly to begin with. Here where courts were more loosely and more extemporaneously organized, and where even judges commonly lacked legal training, distrust of lawyers became an institution. By the later 18th century when American commerce required a more skilled legal profession, it had already been determined that men of legal learning would not acquire the upper-class monopolistic position they held in England.

The newly-shaped ruling group in each colony preferred to keep the privileges which an established legal profession might have taken from them. In Virginia, for example, the landed aristocracy did much of their own law work rather than create a new class of colonial lawyers. In Massachusetts Bay the clergy, supported by Puritan prejudice against lawyers, delayed the growth of a trained, self-conscious bar: the colony’s earliest known provision affecting lawyers (Body of Liberties, Art. No. 26) prohibited any man from giving a reward to another to represent him in court. In New York, too, the merchants and large landowners were unwilling to hand over any of their powers to a legal aristocracy. In Pennsylvania, the Quakers tried to avoid legal process altogether by using laymen as “common peacemakers.”

But while the colonies could live and even prosper without barristers, solicitors, or scriveners, they could not live without law. As they became more populous and wealthy and as their commercial life became more intricate, some men made the law their special business. Before the end of the colonial era each colony possessed something like a legal profession. Nobody had planned the result, but each colony had provided for its needs in its own way. Each by a separate path had arrived at a common New World destination, which was as remote intellectually as it was geographically from the port-scented halls of London’s Inns of Court. The scarcity of professional apparatus together with the lack of licensing guilds in law encouraged an informal apprentice system of training. English solicitors and attorneys had long been trained in something like an apprentice system. An Act of Parliament in 1729 required five years of apprenticeship under formally-drawn “articles” before a solicitor or attorney could practice in any court. The gentlemanly barristers, however, remained autonomous. For those socially and financially qualified, admission to their particular monopoly was, one historian has observed, like the return of stolen goods “without any questions being asked.” For them there was not even a general requirement of apprenticeship. In colonial America, however, an apprenticeship, usually less formal than that required for English attorneys and solicitors, was the door to all branches of the legal profession.

Diversity was the rule. In New England and in the middle colonies by the time of the Revolution there had grown up a haphazard, weakly organized legal profession, with little esprit. In larger colonies, admission to legal practice tended to be dispersed into the different courts, each of which admitted its practitioners on whatever criteria appealed to it. In the smaller colonies (Rhode Island, Connecticut, and Delaware, for example), where all the judges and practitioners were likely to know one another, a lawyer who had been admitted by any one of the courts was generally allowed to practice in all of them. In North Carolina, New York, and New Jersey, Royal Governors held the technical power to appoint all attorneys, but they generally appointed only on the recommendation of a judge or a court. The earliest American association of lawyers was probably that in New York, which was founded sometime before 1748 and disappeared soon after 1765; in Massachusetts a bar association did not come into being until 1761. In all these colonies in the 18th century, practicing lawyers were distinguished by a higher level of education than that of the general population, but their education was quite unspecialized and had usually been secured in colonial colleges.

In the South, especially in Virginia and South Carolina, cities were fewer and English institutions were more highly valued and more consciously imitated. There the highest courts, though sometimes indirectly, controlled the admission of all attorneys. The leading practitioners had attended the Inns of Court in London. This vogue of the Inns seems to have increased unaccountably after about 1750: of approximately 236 American-born members of the Inns of Court before 1815, over half were admitted between 1750 and 1775. Of the whole figure nearly one-third came from South Carolina, nearly one-quarter from Virginia, and more came from Maryland than from Pennsylvania, New York, or Massachusetts. All this fits with the legal conservatism of the Southern leaders of the American Revolution. Who knew better than they the ancient ways of English lawyers and the traditional rights of Englishmen?

In America, then, the variety of climate, economy, landscape, and local tradition produced a variety of standards for the legal profession. The lack of a single commercial or political capital expressed and re-enforced this variety; there was no metropolitan focus for monopoly. The Southern aristocracy’s effort to make the Inns of Court the headquarters of their legal profession failed: London was too far away.

There did grow up a simpler, less snobbish kind of distinction: not a dividing or specializing of the profession, but an informal grading of practitioners by their education and experience. In some places only the better educated and longer experienced lawyers were allowed to practice in the highest courts. The few serious efforts (in early Virginia statutes, for example) to transplant the English distinctions were short lived: young Southern barristers, returned from the Inns of Court, for a while seemed to dominate practice in colonial courts, but the Revolution interrupted the flow of students to the Inns and disintegrated this distinction before it was well established. Even in Virginia in 1810 the courts plainly declared that the functions of a barrister and of an attorney were “inseparably blended in the same person.”

The erasing of boundaries between the petty domains of the barrister, the solicitor, and the attorney was less significant than the breakdown of the walls which in Old England kept legal knowledge from the common citizen. Where land was more a commodity than an heirloom, many more people became landowners and, of necessity, learned some law. As colonials acquired personal knowledge of the legal rights of Englishmen, they distrusted still more the licensed professional monopolist.

One of the reasons we know so little about American law in the colonial era is that so many of the judges were laymen. They seem to have paid little attention to English precedents, only a few of which were available in the colonies, or to American precedents, none of which were yet reported in print. Their own opinions usually went unreported. We know very little of the judges’ notions of substantive law, for even when a decision was permanently recorded, the reasons were seldom given. In none of the American colonies before the end of the colonial era were the courts manned predominantly by professionally trained lawyers. Even in the highest court of Massachusetts Bay, which during the 18th century possessed a larger and better organized bar than any other colony, men learned in the law were rare. Of the nine Chief Justices of Massachusetts between 1692 and the Revolution, only three had specialized legal training, two at the Inns of Court and one in the colony; the rest were clergymen, physicians, merchants, or simply men of general education. Of the twenty-three Associate Judges during this period only three possessed any regular legal education, the rest being clergymen or laymen; two judges in the Court of Admiralty had been trained as English barristers. The judges of Massachusetts included no other professionally trained lawyers. The situation in the other colonies was not much different: if anything, trained lawyers on the Bench were still more rare; everywhere the lay judge was the rule.

Jefferson recalled that just after the mid-18th century, when he practiced at the bar of the General Court, Virginia Attorney General John Randolph owned three manuscript volumes of reports of cases decided in that court between 1730 and 1740. Although this was Virginia’s highest court, its decisions on matters of English law (according to Jefferson) were “of little value, because the Judges of that court, consisting of the King’s Privy Counsellors only, chosen from among the gentlemen of the country, for their wealth and standing, without any regard to legal knowledge, their decisions could never be quoted, either as adding to, or detracting from, the weight of those of the English courts, on the same point. Whereas, on our peculiar laws, their judgments, whether formed on correct principles of law, or not, were of conclusive authority.”

Lawbooks were scarce by English standards. John Adams recorded in his autobiography that, seeking an American legal education, he had “suffered very much for want of books.” Of about one hundred and fifty volumes of law reports which had been published in England before the American Revolution, only about a fifth were commonly used here; the proportion of treatises and textbooks was even smaller. The first volume of American law reports was not published until 1790.

Where laymen were judges, there was little incentive for advocates to be learned lawyers. In fact, technical legal learning might have been a disadvantage, for an advocate could hardly show his learning without revealing the ignorance of the judge and arousing the suspicion of the jury. During a controversy between the Governor and the legislature of Massachusetts, John Adams “quoted largely” from Moore’s Reports, “a law authority which no man in Massachusetts had ever read.” Thomas Hutchinson (who had been Chief Justice of Massachusetts for over a decade) was not professionally trained in the law, but still was a great deal better read in the law than most men who sat on his bench. Adams reported that even Hutchinson was unacquainted with the authority and so “wriggled to evade it. He found nothing better to say than that it was ‘the artificial reasoning of Lord Coke.”’

A colonial spokesman of the extreme anti-professional spirit was Chief Justice Samuel Livermore, who presided over the courts of New Hampshire in the late 18th century. “Judge Livermore, having no law learning himself,” complained one of the few technically trained lawyers of the day, “did not like to be pestered with it at his courts. When West attempted to read law books in a law argument, the Chief Justice asked him why he read them; ‘if he thought that he and his brethren did not know as much as those musty old worm-eaten books?”’ In the very age when English lawyers were enthroning the strict rule of precedent, Judge Livermore dismissed a reference to an earlier contrary decision of his own by observing that “every tub must stand on its own bottom.” “It is our business,” Associate Justice John Dudley (a farmer and trader by occupation, who sat on the same bench with Livermore) charged a jury, “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.” When the learned Jeremiah Mason filed a “demurrer,” one of the best-known devices in English legal pleading, Judge Dudley ridiculed the alien technicality as “no doubt an invention of the Bar to prevent justice.”

If the American lawyer sometimes possessed less legal learning than his English counterpart, the literate American layman possessed more of it. Some lay judges—like two Chief Justices of Massachusetts, William Stoughton (1692-1701) and Samuel Sewall (1718-28)—had read widely in law and compared not unfavorably with many contemporary English judges. “Generally in our colonies,” observed Dr. William Douglass, “particularly in New-England, people are much addicted to quirks in the law; a very ordinary country man in New-England is almost qualified for a country-attorney in England.”

In England, the 18th century was the era of professional systematizing on a grand scale: Matthew Bacon’s “Abridgment” appeared in 1736; Charles Viner’s famous legal encyclopaedia (in 23 volumes) in 1742-53; Comyns’ “Digest” in 1762. The great success of Viner’s work financed the first professorship of English Law at Oxford, held by Sir William Blackstone, who delivered there as lectures his famous “Commentaries.” And Blackstone’s Commentaries on the Laws of England (1765-69) was the most ambitious and most successful effort ever made to reduce the disorderly overgrowth of English law to an intelligible and learnable system. Needless to say, colonial America produced no great legal systems or encyclopaedias. What it did produce were the varied, dispersed, and miscellaneous efforts of hundreds of laymen semi-lawyers, pseudo-lawyers, and of a few men of solid legal learning. Of all the known legal treatises (about sixty) published in the American colonies before 1788, not a single one was properly a treatise for professional lawyers. Instead, they were editions of The Constables Pocket-Book and similar handbooks to help laymen do the work of lawyers.

“In no country perhaps in the world is the law so general a study,” observed Edmund Burke in a famous passage in his speech on conciliation with America, “… all who read, and most do read, endeavor to obtain some smattering in that science.” He saw the broad significance in this American dissolution of the lawyers’ monopoly: such a citizenry would not allow itself to be oppressed. The people of the colonies would be united by their common understanding, or misunderstanding, of their legal rights. Was it not a fact—Burke said he learned it from an eminent bookseller—that by 1775 Blackstone’s Commentaries had sold nearly as many copies in America as in England?

While Blackstone had violated the spirit of the common law by confining it in a system, he had provided for the first time the means by which any literate person could grasp the large outlines of his legal tradition. The vogue of Blackstone, who went through numerous American editions in the late 18th and early 19th centuries, therefore proclaimed the popularity and the thinness of legal knowledge in America. Blackstone was to American law what Noah Webster’s blue-back speller was to be to American literacy. With nothing more than the four volumes of the Commentariesat hand, anyone—however far from ancient professional centers, from courts or legislatures—could become an amateur lawyer. Blackstone was a godsend to the rising American, to the ambitious backwoodsman and the aspiring politician. One of the delightful ironies of American history is that a snobbish Tory barrister, who had polished his periods to suit the taste of young Oxford gentlemen, became the mentor of Abe Lincoln and thousands like him. By making legal ideas and legal jargon accessible in the backwoods, Blackstone did much to prepare self-made men for leadership in the New World.

If you find an error please notify us in the comments. Thank you!