USA > Massachusetts > Essex County > Municipal history of Essex County in Massachusetts, Volume II > Part 48
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This change in the judicial system made the Circuit Court of Com- mon Pleas the law court of the county, and it in 1821 ceased to exist and a Court of Common Pleas came into existence with one Chief Justice and three other Justices which, as business increased, was finally en- larged to a court of seven justices. On the fifth day of April, 1859, this court was in turn abolished and the Superior Court as we now know it was created, at first comprising ten justices, but increased from time to time until today (1922) it is composed of a Chief Justice and twenty- seven Associate Justices (twenty-nine by a current act of the legis- lature). The Superior Court Justices are appointed at large throughout the Commonwealth by the Governor with the advice and consent of the Council. The terms of court are to a large degree, whether civil, jury, or jury waived and criminal, established by statute to be held in the sev- eral counties of the Commonwealth, and the judges are assigned each year by the Chief Justice to hold the various sessions. It is not a county court as such, though the terms are held by counties, the old system of shire
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town preserved, and the writs, processes, records, etc., use the county as territorial units.
To the Bench of the Court of Common Pleas the following judges were appointed : Samuel Phillips, 1782 ; Benjamin Greenleaf, 1782 ; John Pickering, Jr., 1782; Samuel Holten, 1782; Nathan Dane, of Beverly, 1794; Ebenezer March, of Newbury, 1796; John Treadwell, of Salem, 1798; Timothy Pickering, Chief Justice, of Danvers, 1802; Daniel Kil- ham, of Wenham, 1811.
The following special justices of the Court of Common Pleas were at various times appointed: Samuel Osgood of Andover, 1786; George. Cabot of Beverly, 1786; John Choate of Ipswich, 1786; John Treadwell of Salem, 1796; Samuel Nye of Salisbury, 1798; Jonathan Cogswell of Ipswich, 1802; Nathan Read of Danvers, 1802; Asa Andrews of Ipswich, 1809; John Prence of Salem, 1810.
Special justices of the Inferior Court of Common Pleas were ap- pointed when the regular justice could not serve by reason of interest amounting to disqualification: Samuel Appleton, 1711 and 1715; John Burrill, 1711 and 1715; John Wainwright, 1725; Theophilus Burrill, 1725, 1729 and 1731; William Gedney, 1729; Richard Kent, 1731; Na- thaniel Coffin, 1734; Benjamin Lynde, Jr., 1734; Epes Sargeant, 1740, 1744 and 1762; David Appleton, 1740 and 1744; John Choate, 1744 and 1745; John Greenleaf, 1755; Daniel Appleton, 1762; Jacob Fowle, 1763; Samuel Rogers, 1763; William Brown, 1766.
The following judges of the General Court of Sessions for this county under its various reorganizations between 1807 and 1828, when it went out of existence and was replaced by the system of County Commissioners were: Nathan Dane, of Beverly, 1807, Chief Justice; Thomas Kittredge, of Andover, 1807; William Pearson, 1807; John Punchard, of Salem, 1807; Josiah Smith, of Newbury, 1807 ; Samuel Holten, of Danvers, 1807, Chief Justice; William Cleveland, of Salem, 1808; Henry Atkins, of Wen- ham, 1808; John Saunders, of Salem, 1808; Henry Elkins, of Salem, 1811; John Prince, Jr., of Marblehead, 1811; Joseph Fallon (3rd), of Lynn, 1811; John Heard, of Ipswich, 1819, Chief Justice; Nehemiah Cleveland, of Topsfield, 1819, Chief Justice; Lonson Nash, of Gloucester, 1820; Hobart Clark, of Andover, 1820; Robert Rantoul, of Beverly, 1822; Stephen W. Marston, of Newburyport, 1822; John Merrill, of Newbury, 1827; John Walsh, 1827.
Judges of the Court of Common Pleas for the Commonwealth from Essex County were: Joshua Holyoke Ward, of Salem, 1844; Jonathan Cogswell Perkins, of Salem, 1848.
Of the Judges of the Superior Court established in 1859, Essex County has had the following: Otis Phillips Lord, of Salem, 1859; Mar- cus Morton, of Andover, 1859; Charles P. Thompson, of Gloucester, 1885; Edgar Jay Sherman, of Lawrence, 1887; Henry Wardwell, of Salem, (?), 1896; Charles Upham Bell, of Lawrence, 1898; Charles Ambrose DeCourcey, of Lawrence, 1902; John Joseph Flaherty, of Gloucester, 1905; Joseph Francis Quinn, of Salem, 1911; James Henry Sisk, of Lynn, 1915; Louis Sherburne Cox, of Lawrence, 1918; Henry Tilton Lummus, of Lynn, 1921.
The Superior Court of Judicature ceased to exist in 1781, when the Supreme Judicial Court, which is the present name of the court of last resort, displaced it. This court was originally constituted with a Chief
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Justice and four Associates, and in 1873, after several changes, became as it is now, with a Chief Justice and six Associates.
The following Essex County men served on the Superior Court of Judicature:
John Hathorn, of Salem, 1702; Jonathan Curwin, of Salem, 1708; Benjamin Lynde, of Salem, 1712, Chief Justice, 1728; Ricard Saltonstall, of Haverhill, 1736; Stephen Sewall, of Salem, 1739; Chief Justice, 1752; Benjamin Lynde, of Salem, 1745, Chief Justice, 1771; Nathaniel Ropes, of Salem, 1772; William Brown, of Salem, 1774; Nathaniel P. Sargeant, of Methuen, 1775; Jedidiah Foster, of Andover, 1776; David Sewall, 1777.
On the Supreme Judicial Court, Essex County has had the following: Theophilus Parsons, of Newburyport, Chief Justice, 1806; Samuel Sewall of Marblehead, 1800, Chief Justice, 1814; Theophilus Bradley, of New- bury, 1797; Samuel Putnam, of Danvers, 1814; Caleb Cushing, of New- buryport, 1852; William C. Endicott, of Salem, 1873; Otis Phillips Lord, of Salem, 1875; Charles A. DeCourcy, of Lawrence, 1911.
Under the Provincial Charter, probate administration was lodged in the Governor and Council, but it was early delegated to Judges and Regis- ters of Probate in the several counties. They did not function as courts strictly speaking, but found their authority solely as agents, so to speak, of the Governor and Council. In 1784, however, it was established as a court, both Judge and Register being appointed by the Governor, and has remained as so constituted except that in 1856 the Register became an elective office. In the same year a Court of Insolvency was created of which the Judge and Register of Probate later became the Judge and Register of Insolvency under the title of Judge and Register of Probate and Insolvency. It is still in existence as such, although of course since the National Bankruptcy Act it has ceased to function as a Court of In- solvency.
The Judges and Registers of Probate in Essex County have been as follows:
Judges-Bartholomew Gedney, 1692; Jonathan Curwin, 1698; John Appleton, 1702; Thomas Berry, 1739; John Choate, 1756; Benjamin Lynde, 1762; Nathaniel Ropes, 1766; Benjamin Greenleaf, 1779 ; Samuel Holten, 1798; Daniel A. White, 1816; Nathaniel S. Howe, 1854; Abner C. Goodell, 1857, Judge of Insolvency; Henry B. Fernald, 1858, Judge of Insolvency ; George F. Choate, 1859, Judge of Probate and Insolvency ; Rollin E. Harmon, 1889, Judge of Probate and Insolvency ; Harry R. Dow, 1908, Judge of Probate and Insolvency; Alden P. White, 1918, Judge of Probate and Insolvency.
Registers-Stephen Sewall, 1692; John Croade, 1695; John Higgin- son, 1698; Daniel Rogers, 1702; Daniel Appleton, 1723; Samuel Rogers, 1762 ; Peter Frye, 1773; Daniel Noyes, 1779; Nathaniel Lord (3rd), 1816; Edwin Laurence, 1852; George R. Lord, 1854; James Ropes, 1856; Jon- athan Perley, Jr., 1857; Abner C. Goodell, 1858, Register of Insolvency ; Charles H. Hudson, 1858, Register of Probate; Abner C. Goodell, 1859, Register of Probate and Insolvency; Jeremiah T. Mahoney, 1878, Regis- ter of Probate and Insolvency; Arthur Bogue, 1912, Register of Probate and Insolvency; Horace H. Atherton, 1913, Register of Probate and In- solvency.
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In the early days, the sheriff of the county was called a marshal. He was a military and peace officer as well. It was down to 1855 an appoin- tive office, at which time it became elective. While not strictly a part of the history of the Bench and Bar, this officer is so closely connected with the courts that marshals and sheriffs to a large extent form part of its history. Those who have held the position of sheriff are as far as the records show :
Marshals-Samuel Orchard, 1663; Henry Sherry, 1670; Robert Lord, 1685; Jeremiah Neale, 1686; John Rogers, 1691; John Harris, 1692.
Sheriffs-George Corwin, 1692; William Gedney, 1696; Thomas Wainwright, 1702; William Gedney, -; Daniel Denison, 1708 ; William Gedney, 1710; John Denison, 1715; Benjamin Marston, 1722; Robert Hale, 1746; Richard Saltonstall, 1766; Michael Farley, 1779; Bailey Bart- lett, 1792; Joseph E. Sprague, 1831; Frederick Robinson, 1852; Thomas E. Payson, 1854; James Cary, 1856; Horatio G. Herrick, 1867; Samuel Johnson, 1893; Patrick F. Tierny, 1920.
The present incumbent is Mr. Arthur G. Wells of Lynn, elected in 1921.
The clerks of the courts were originally appointed by the Courts themselves, except the period between 1811 and 1814, when the Governor and Council became the appointing power. After that time it was lodged in the Supreme Judicial Court, until in 1856 it became an elective office in the various counties: The following is a list of those who have been Clerks of the Courts for Essex County so far as can be discovered from the records :
Ralph Fogg, 1637; Henry Bartholemew, 1647; Robert Lord, -; Elias Stileman, 1653; Hilliard Veren, 1658; Bart. Gedney, -; Ben- jamin Gerrish, 1683; Stephen Sewall, 1692; Mitchell Sewall, 1727; Joseph Bowditch, 1750; William Jeffrey, 1771; Joseph Blaney, 1774; Samuel Osgood, 1779; Isaac Osgood, 1783; Thomas Bancroft, 1795; Samuel Hol- ten, 1797; Thomas Bancroft, 1798; Ichabod Tucker, 1804; Joseph E. Sprague, 1812; Ichabod Tucker, 1813; John Prince, Jr., 1828; Ebenezer Shillaber, 1842; Asahel Huntington, 1852; Alfred A. Abbott, 1872; Dean Peabody, 1885; Edward B. George, 1897.
The present clerk of the Courts is Archie N. Frost, of Lawrence, ap- pointed in 1917.
During the colonial period and down to 1715, the clerks of the Courts or recorders were the recording officers corresponding to the Registers of Deeds. At that time it was provided that some person should be chosen by the county who had a freehold of at least ten pounds for that purpose. It has remained so down to the present time. The following have been Registers of Deeds exclusive of the Clerks of the Courts :
Mitchell Sewall, 1727; John Higginson, 1774; John Pickering, 1780; Amos Choate, 1807; Ralph H. French, 1832; Ephraim Brown, Jr., 1852; Ephraim Brown, 1870, for the Southern district; Gilbert E. Hood, 1870, for the Northern district; Ephraim Brown, 1875, for the Southern dis-
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trict; Abel Morrison, 1875, for the Northern district; John R. Poor, 1878, for the Northern district; Charles S. Osgood, 1879, for the Southern district; Willard J. Hale, 1897, for the Southern district; John J. Don- ovan, 1892, for the Northern district; Aretas Sanborn, 1895, for the Northern district; Thomas F. Delaney, 1904, for the Northern district.
The present Registers are: Moody Kimball, of Newburyport, for the South District, 1920; Moses Marshall, of Lawrence, for the North Dis- trict, 1907.
The history of Essex County Courts would not be completed without brief mention of those courts which, outside possibly of the Probate Courts, come closest to the people, and by which the popular estimate of our judicial system is largely formed, namely the District Police Courts. These courts are localized and limited in their civil and criminal jurisdic- tion. They were established in Salem in 1838, Newburyport in 1833, Lawrence in 1848, Lynn in 1849, Haverhill in 1854 and Gloucester in 1858. As now constituted the District Courts are as follows:
Newburyport-Jurisdiction, Newburyport, Newbury and Rowley with concurrent jurisdiction in Salisbury and West Newbury. Justice, Thomas C. Simpson. Special Justices, Nathaniel N. Jones and Oscar H. Nelson. Clerk, Edward H. Rowell.
Salem (First Essex)-Jurisdiction, Salem, Beverly, Danvers, Hamil- ton, Manchester, Middleton, Topsfield and Wenham. Justice, George B. Sears. Special Justices, Robert W. Hill and Charles A. Murphy. Clerk, Morgan J. McSweeney.
Amesbury (Second Essex)-Jurisdiction, Amesbury and Merrimac and concurrent jurisdiction in Salisbury. Justice, Charles I. Pettingell. Special Justices, M. Perry Sargent and Jacob T. Choate. Clerk, Fred A. Brown.
Ipswich (Third Essex)-Jurisdiction in Ipswich. Justice, George H. W. Hayes. Special Justices, Albert F. Welsh and Harry E. Jackson. Clerk, George A. Schofield.
Haverhill (Northern Essex) -Jurisdiction, Haverhill, Groveland, Georgetown and Boxford with concurrent jurisdiction in West Newbury. Justice, John J. Winn. Special Justices, Otis J. Carlton, Daniel J. Cavan. Clerk, Brad D. Harvey.
Gloucester (Eastern Essex)-Jurisdiction in Gloucester, Rockport and Essex. Justice, Sumner D. York. Special Justices, Lincoln S. Sim- onds and John J. Burke. Clerk, Simeon B. Hotchkiss.
Lynn (Southern Essex)-Jurisdiction in Lynn, Swampscott, Saugus, Marblehead and Nahant. Justice, Ralph W. Reeve. Special Justices, Elisha M. Stevens, Edward B. O'Brien and Philip A. Kiely. Clerk, J. Joseph Doherty.
Lawrence-Jurisdiction, Lawrence, Andover, North Andover and Methuen. Justice, Jeremiah J. Mahoney. Special Justices, Wilbur E. Rowell, Frederic N. Chandler. Clerk, Nathaniel E. Rankin.
Peabody-Jurisdiction, Peabody and Lynnfield. Justice, Daniel C. Manning. Special Justices, Horace P. Farnham and William H. Fay. Clerk, Charles J. Powell.
Trial Justices-Albion G. Pierce, Methuen; Colver J. Stone, An- dover; Newton P. Frye, North Andover; Moses S. Case, Marblehead; William E. Ludden, Saugus; and Walter H. Southwick, Nahant.
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The origin of the office of Attorney General as a part of the Judi- cature of Massachusetts seems lost in antiquity. There appears to have been no Attorney General during the period of the Colonial Charter, and the date of the first appointment to this office was probably 1680. Under the Provincial Charter it was a well recognized office. He was the chief prosecuting officer during this period, as shown by the record and his ap- pearances in court, though but little appears of a statutory nature as to his duties and limitations. While recognized by the constitution as a part of the scheme of government then devised, yet, as was said by Rugg, Chief Justice, in Commonwealth v. Korlowsky, "It often has been recognized that the powers of the Attorney General are not circumscribed by any Statute, but that he is clothed with certain common law facilities appurtenant to the office."
Essex County has been represented in the office of Attorney General by the following :
James Sullivan, 1790; Barnabas Bidwell, 1807; Perez Morton, 1810; James T. Austin, 1832; John Henry Clifford, 1849; Rufus Choate, 1853; Stephen Henry Phillips, 1858; Dwight Foster, 1861; Chester R. Train, 1872; Edgar J. Sherman, 1883; Andrew J. Waterman, 1887; Henry C. Atwill, 1915.
Apparently the duties of the Attorney General as the law officer of the counties became too onerous, for the office of State Attorney was established in 1807, and in that year Joseph Story was appointed to the office. In 1811 it was called County Attorney, and David Cummings of Salem received the appointment. It later became known as District Attorney, when in 1852 county lines were abandoned as such, though so far as Essex County is concerned the Eastern District, by which name it is now known, is contiguous with the county lines.
The following have been District Attorneys of Essex County and the Eastern District :
Joseph Story, of Salem, October 21, 1807; Asa Andrew, July 31, 1809; David Cummings, of Salem, September 27, 1811; Samuel Putnam, December Term 1813; John Pickering, September Term 1814; Stephen Minot, March Term 1824; Asahel Huntington, August 19, 1830; Albert H. Nelson, March Term 1846; Asahel Huntington, March Term 1848; Stephen H. Phillips, of Salem, April 16, 1851; Alfred A. Abbott, October Term 1853; Edgar J. Sherman, January 25, 1869; Henry P. Moulton, January Term 1883; Henry F. Hurlburt, January Term 1884; William H. Moody, January Term 1890; Alden P. White, January Term 1896; W. Scott Peters, January Term 1899; Henry C. Atwill, January Term 1911; Michael H. Sullivan, January Term 1915; Louis S. Cox, January Term 1916; Henry C. Wells, May Term 1918.
The present incumbent is S. Howard Donnell, of Peabody, his first assistant, William G. Clark of Gloucester, and his second assistant, Ed- ward F. Flynn of Lynn.
The early history of the bar as distinguished from the bench is an exceedingly difficult thing to trace, probably for the reason that there
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was no such institution. As pointed out heretofore, even the early judiciary was not chosen with any views to legal knowledge, and training in the law of common sense seemed to be a prime requisite rather than familiarity with legal lore and the intricacies of pleading and practice. Laymen and lawyers sat on the bench and dispensed justice without much regard to the rules of evidence or the refinements of demurrers, pleas, rebutters or surrebutters. If men or women behaved themselves un- seemly, they were placed in the stocks or whipped after the decree of their lawfully constituted judges, who were of their neighbors and fellow citizens. If a man encroached on his neighbor's domain or restrained his pig, a tribunal weighed the facts and told him what he must do if found in the wrong. The simple life of the nation builders did not need the complication of our system of jurisprudence to determine right and rectify wrong. The increasing complexities of society gave rise to the existence of a bar as an institution, which has itself grown as the social life en- larged.
It must be kept in mind that the early society was in essence a re- ligious one, and the government consequently was that of a religious community. The clergy were the leaders of the day, and Governors and Judges alike were prone to call in the minister to advise and expound the law as well as to help decide what ought to be done. The need for a code of laws was not felt for a considerable period after the first settle- ment, and when it was finally determined upon in 1641, a minister from Ipswich, Rev. Nathaniel Ward, was the one who was delegated to "fur- nish a copy of the Liberties." Though he had been trained in the law in his early days in the mother country, he had cast aside the ermine of the courts to assume the robe of the pulpit, and it is not to be marvelled at that his code was taken from the Mosaic law and that as to capital offences and their punishment it was annotated with references to chap- ter and verse from the Bible. This code consisted of one hundred laws, civil and criminal, and was far in advance of the laws of England at the time, and indeed may be said to be the foundation of our statute law as we know it, having in substance been adopted with amplifications in every subsequent codification of the laws of the Colony.
The lack of court procedure and of the practice of the law as an exact science finds many illustrations in the early records. Of these the witchcraft delusions and the creation of a special tribunal to deal with the situation, fostered, cultivated and guided by the leading clergy of the day, stands forth strongly. It is even stated, strange as it may seem, that as late as 1769 in a murder case arising in Ipswich, the obso- lete "Ordeal of Touch" was invoked and actually enacted with all its superstitious and awe-inspiring atmosphere, but, failing in a determina- tion of guilt, was followed by grand jury indictment and subsequent trial and acquittal of the suspected parties.
For years the clerk wrote out the testimony given in court, but this
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became so cumbersome that the testimony was committed to writing, and the papers with affidavits were given to the jury to be considered by them. There was no cross-examining of witnesses, and all a lawyer had to do was to argue the case. No attention was paid to rules of evidence, and a juryman not clear in his mind as to the case could in open court advice with any he saw fit as to the controversy before him and his fel- lows.
A salutary law was passed in 1656 which perhaps without detriment to present proceedings might well be brought forward in some modern actions in court. To expedite proceedings in court, it authorized the fining of a party twenty shillings an hour for the time occupied in his plea beyond one hour. Lawyers or those acting as such were ignorant of the principles of the law, were bound by no oaths and were irresponsible to the courts, although attempt at regulation appears to have been made in 1686, when an order was passed providing for a form of oath and pre- scribing the fees to be charged.
The names of five are handed down to us. They were or had been merchants, one an apothecary, and another a tailor. Judicial office and, indeed, most political offices, were largely a family affair, which re- sulted in a distinct governing class. Judges and lawyers wore robes and wigs, and it was customary for the sheriff of the county with a military guard or body of prominent citizens to meet them riding the circuit on horseback at the borders of the shire town and escort them to their lodgings with great parade and pomp.
However, after the Colonial era there seems to have arisen some semblance, naturally enough, to the practice of the English courts, and barristers and attorneys and counsellors, with some distinction between them, existed down to 1836, when such differentiations were done away with. The early difference between these seems to have been the length of practice before the Inferior Courts, that of the barristers being the highest and could be attained only after a period of preparation varying from three to seven years. How many barristers there were in the earlier days probably cannot be determined, but Washburn in his "His- tory of the Judiciary" says that in 1768 there were twenty-five in Massa- chusetts, of whom Daniel Farnham, William Pynchon, John Chipman, Nathaniel Peaslee Sargent and John Lowell came from Essex County.
Apparently, training in the law did not foster the pioneer spirit, for no record appears that the plaint for "honest attorneys", quoted supra, was answered by any horde of aspirants for legal distinction in the forums of the new land. They were not looked upon with any degree of favor, and there was even an interdict on their becoming members of the Gen- eral Court, which ordered in 1663 "that no usual and common attorney in any Inferior Court should be admitted to sit as Deputy in this Court."
A rule of court was adopted in the Superior Court of Judicature in 1781 relating to the admission of barristers, which well merits the perusal
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of present and future members of the Bar, and if adopted as a pledge of honor by the profession will for all time place the lawyer far beyond all possibility of suspicion and contempt in the minds of the laymen. This rule was:
Whereas learning and literary accomplishments are necessary as well to promote the happiness as to preserve the freedom of the people, and the learning of the law when duly encouraged and rightly directed, being as well peculiarly subservient to the great and good purpose aforesaid, as promotive of public and private justice; and the court being at all times ready to bestow peculiar marks of approbation upon the gentlemen of the bar, who, by a close application to the study of the science they pro- fess, by a mode of conduct which gives a conviction of the rectitude of their minds and a fairness of practice that does honor to the profession of the law shall distinguish as men of science, honor and integrity ; Do order that no gentleman shall be called to the degree of barrister until he shall merit the same by his conspicuous bearing, ability and honesty ; and that the court will, of their own mere motion, call to the bar such persons as shall render themselves worthy as aforesaid; and that the manner of calling to the bar shall be as follows: The gentleman who shall be a candidate shall stand within the bar; the chief justice, or in his absence the senior justice, shall, in the name of the court, repeat to him the qualifications necessary for a barrister-at-law; shall let him know that it is a conviction in the mind of the court of his being possessed of those qualifications that induces them to confer the honor upon him; and shall solemnly charge him so to conduct himself as to be of singular service to his country by exerting his abilities for the defence of her Constitutional freedom ; and so to demean himself as to do honor to the court and bar.
And again by the same court, in October of 1781, a further rule, full of patriotic spirit and suggestive of the troublous times, was ordered:
Where it is provided that all attorneys commonly practicing in the Courts of Justice within this government shall take the oath prescribed in the law for attorneys and the oath of allegiance to this Commonwealth, and the 12th article in the declaration of rights having provided that every subject shall be heard by himself or his counsel at his election; in order therefore to carry the same provisions into effect and to exclude men who are enemies to this country, immoral persons and disturbers of the peace, from stirring up unnecessary law suits and fomenting dissen- sions and divisions amongst the good people of this Commonwealth, the Court do in pursuance of the authority by law given them make the fol- lowing rule, viz: That no person shall be permitted to practice in this court as an attorney until he shall have been regularly sworn as the law directs; and that no person shall be admitted as an attorney of said court until they are convinced from the manner of his life that he is a friend to the interest and independence of his country, that he sustains a good moral character and has had time and opportunity for and hath really acquired sufficient learning to render himself useful in the profes- sion and practice of the law.
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