CHAPTER III.

NEW ENGLAND LAW AND LAWYERS IN THE 18TH Century.

After the passing of the troublous times of James II and the revocation of most of the colonial charters, and after the Treaty of Utrecht, when peace was established on two continents, the American Colonies rapidly grew in wealth and influence.

Means of education increased. William and Mary College was founded in Virginia in 1692, Yale College in 1700, Kings College (Columbia) in New York, in 1754, College of New Jersey (Princeton), at Newark, in 1746, Brown at Providence, in 1764. The first public library was established in New York in 1729, consisting of 1600 volumes. While the first printing press had been brought into Massachusetts in 1629 and set up at Cambridge, being owned partially by Henry Dunster, President of Harvard College, there were nine printers in Massachusetts prior to 1692; and the first paper in all the Colonies was published in 1704, the Boston News Letter. (1)

In January, 1673, the first monthly postman began his trip between New York and Boston. In 1693, the first act was passed, encouraging "A general Letter Office in Boston." In 1704, the office of "Deputy Postmaster General for the Colonies," located in New York, was established by Act of Parliament. In 1753, Benjamin Franklin, then filling this office, established a penny post.

There was, at the same time, a very rapid extension of commerce, of export trade, of shipbuilding, fisheries, and slavetrading. A class of rich merchants began to control in the community. Questions as to business contracts and business paper began to arise. Land grew more valuable, and the legal determination and stability of landed rights become more necessary. Though

(1) Then followed the Boston Gazette, and the American Magazine, at Philadelphia, in 1719; the New England Courant in 1721, the New York Gazette in 1725, the Maryland Gazette, at Annapolis, in 1728, the South Carolina Gazette, at Charleston, and the Rhode Island Gazette, at Newport, in 1732, the Weekly Journal, at New York, in 1733, the Virginia Gazette, at Williamsburg, in 1736, the Connecticut Gazette, at New Haven, in 1755, the American Magazine, at Philadelphia, in 1741, the Pennsylvania Journal in 1742, the North Carolina Gazette, at New Berne, in 1755, the New Hampshire Gazette, at Portsmouth in 1756.

less encumbered with elaborate trusts and settlements than in England, wills grew more complicated. Important questions arose between the government of the various Colonies. The political liberties guaranteed by the principles of the English Common Law became increasingly more vital to the colonists, as the Royal Governors attempted to enlarge their own powers, and the King and Parliament began to trespass on what the Colonies regarded as their own prerogatives.

Thus arose the need for lawyers trained in English law. The need, supplied at first by barristers from England, was soon filled by native lawyers, educated in the colleges and in law offices of the Colonies.

MASSACHUSETTS.

While the Bar in Massachusetts developed rapidly in legal training, the bench still lagged behind; and for many years was composed chiefly of laymen.

Of the Chief Justices of the Superior Court of Judicature in Massachusetts, the first, William Stoughton (Chief Justice 16921701) was a clergyman (1); his successor, Waite Winthrop, (Chief Justice 1701, and 1708-1717) was a physician (2); Isaac Addington (1702-1703), was a physician (3); Samuel Sewall (1718-1728), was a clergyman (4); Benjamin Lynde (17281749), was a barrister of the Middle Temple (5); his successor, Paul Dudley, (1749-1751), was a barrister of the Inner Temple (6); Stephen Sewall (1752-1760), was a tutor in Harvard College (7); Thomas Hutchinson (1760-1771), was a wealthy merchant (8); Benjamin Lynde, the younger, (1771-1772), had a legal education in the Colony (9); Peter Oliver (1772-1776), was a literary man (10).

Of the twenty-three associate judges, Edmund Trowbridge, Chambers Russell (11) and William Cushing, were the only ones

(1) Born 1631, Harvard graduate of 1650.

(2) Born 1642, grandson of John Winthrop, Judge of Admirality, 1699. (3) Born 1645.

(4) Born 1652, Harvard, 1671, Judge of Probate, 1715-1728.

(5) Born 1666, Harvard, 1686, Advocate General of the Court of Admirality, 1697.

(6) Born 1675, Harvard, 1690, Attorney General, 1702.

(7) Born 1702, Harvard, 1721.

(8) Born 1711, Harvard, 1727, 1752 Judge of Probate, 1758 Lieut. Gov.

(9 Born 1700, Harvard, 1718.

(10) Born 1712, Harvard, Harvard, 1730.

(11) Born 1713, Harvard, 1731, Judge of Probate, 1752.

who had any regular legal education, the rest being laymen or men trained for the ministry. Roger Mompesson and Robert Auchmuty, Judges of Admirality, had been English barristers. No other trained lawyers appeared on the Bench.

Notwithstanding their lack of systematic legal training, however, many of these judges were men of great learning and some of them had read considerable law. Thus it has been said of William Stoughton that(1):

He had extraordinary attainments in legal learning

It is true that he as well as Dudley and Sewall was bred a clergyman; but those who imagine that the study of divinity unfits the student for forensic, legislative or magisterial duties are to be reminded that the legal is but a lay branch of the clerical profession from which it sprung; and that the secularizing of jurisprudence is a work of modern times. . . . I think the three magistrates I have named, each of whom acceptably held the post, either in Massachusetts or New York, of chief justice of the highest judicial court will compare favorably in respect to all those acquirements necessary to the proper conduct of trials and the administering of forensic justice, with, at least, the average benchers of the Inns of Court in the days of William and Anne.

So too of Samuel Sewall, Washburn says:

From a perusal of his journal it is apparent that he had a natural taste for legal science which he had cultivated by a very respectable course of study-He must have been altogether better read in the principles of the common law than any other judge upon the bench.

And Sewall's address to the Grand Jury at the opening of the first court in the new Town House in Boston, April 27, 1793, contains most enlightened views:

Let never any judge debauch this bench by abiding on it when his own cause comes under trial. May the judges always discern justice with a most stable, permanent impartiality.-Let the attorneys remember they are to advise the court as well as plead for their clients.

Thomas Hutchinson being a man of liberal culture had devoted much time to the reading of law though he had never practised

(1) See Witch Trials in Massachusetts by Abner E. Goodell-Mass. Hist. Soc. Proc., Vol. XX (1883).

law. In his diary he remarks, that "Though it was an eyesore to some of the bar to have a person at the head of the law who had not been bred to it, he had reason to think the lawyers in general at no time desired his removal." (1)

Chief Justice's lack

That the lawyers were restive under the of legal knowledge, is shown, however, in a letter written by John Adams to William Tudor (March 8, 1817), regarding a controversy between the Governor and the General Court in which he had appeared as counsel:

Mr. Hutchinson had wholly misunderstood the legal doctrine of allegiance. . I had quoted largely from a law authority which no man in Massachusetts had ever read. Hutchinson and all his law counsels were in fault; . They dared not deny it lest the book should be produced to their confusion. It was humorous enough to see how Hutchinson wriggled to evade it. He found nothing better to say than that it was the artificial reasoning of Lord Coke.' The book was It had been Mr. Gridley's. (2)

Moore's Reports.

It is a noticeable fact, however, that 20 out of 33 of the Superior Court Judges, though without legal training, were graduates of Harvard College. And even of the judges of the lower Courts of Common Pleas in Suffolk County, 12 out of 25 were graduates of Harvard; in Middlesex, 7 out of 20; in Essex, 12 out of 30; in Plymouth, 8 out of 19.(3)

Of the ten Attorney-Generals, Thomas Newton, (who came over in 1688), was the only English barrister; although Addington Davenport had received a Master's Degree at Oxford, and seven of the others had studied law in the Province, six being Harvard graduates.

It was not until June 20, 1701-2, that practice of the law became first dignified as a regular profession, through the requirement by statute of an oath for all attorneys practicing in the courts, as follows:

(1) An interesting sidelight is thrown on this, by an entry in his diary under date of July 22, 1774, when he was in England visiting Sir Francis Bernard.

"Sir Francis mentioned among other things that he apologized to Lord Mansfield for appointing me Chief Justice, not having been bred to the law; adding that he had no cause to repent it. Lord Chief Justice Wilmot being by, broke out with an oath "By he did not make a worse chief justice for that!" See Diary of Thomas Hutchinson, p. 195. (2) Life of Thomas Hutchinson, by James K. Hosmer (1896).

(3) See biographies in Judicial History of Massachusetts, by Emory Washburn.

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 courts as to your clients. (1)

The scarcity of lawyers and the fear of parties retaining the whole Bar is shown by the passage of the Act of June 16, 1708, providing that "no person shall entertain more than two of the sworn allowed attorneys at law, that the adverse party may have liberty to retain others of them to assist him, upon his tender of the established fee which they may not refuse. (2)

At first the native lawyers were, in general, men of little distinction, or reputation; and the lawsuits were of small import.

During the first half of the 18th Century, New England was crippled by foolish financial management, through the unlimited issue of paper money, and from 1704 to 1741, the depreciation of the currency produced innumerable troubles. These conditions. gave rise to much litigation; and William Shirley reported to the Board of Trade, in 1743, that "it was not infrequent for persons of some circumstances and character to suffer judgments to be given against them by default in open court for such debts, and to appeal from one court to another merely for delay; whereby lawsuits were scandalously multiplied and a litigious, trickish spirit promoted among the lower sort of people." (3)

Even as late as 1758, John Adams, soon after he was admitted to the Bar, stated, that he "found the practice of law was grasped into the hands of deputy sheriffs, pettifoggers, and even constables, who filled all the writs upon bonds, promissory notes and accounts, and received the fees established for lawyers, and stirred up many unnecessary suits."

In 1747, Dr. Douglas wrote in his Summary, "Generally in all

(1) This oath followed almost exactly the form set forth in England in The Book of Oaths (1649); and see also The Practick Part of the Law (1676).

(2) This provision appeared again in 1785; and as late as 1836, (Rev. St. Ch. 88, Sect. 26) it was provided, that no more than two persons for each party should, without permission of the court, be allowed to manage any case.

(3) Life of Thomas Hutchinson, by James K. Hosmer, p. 20 (1896).