USA > Massachusetts > Suffolk County > Professional and industrial history of Suffolk County, Massachusetts, Volume I > Part 11
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Another of the attorneys in the early colonial days was Thomas Mor- ton, of Merry Mount, who came from England in 1625, and returned in 1628. He was probably an educated lawyer and styled himself " of Clifford's Inn, Gentleman." He returned to Massachusetts in 1643, was arrested for misconduct and after a year's imprisonment was released on the ground of age and insanity.
The real practitioners in the courts, however, under the colonial char- ter were not lawyers. Mr. Joseph Willard, the late clerk of the courts, stated in an address before the Worcester bar in 1829, that among the leading practitioners were John Coggan, a merchant; Amos Richard- son, a tailor ; John Watson, a merchant ; and Benjamin Bullivant, an apothecary and perhaps physician. In fact, the business of practicing in the courts was looked upon as so objectionable that a law was passed in 1662 excluding every one " who was a usual and common attorney in an Inferior Court from a seat in the house of deputies."
It was largely the custom for parties to manage their own suits, and litigation with its consequent burden upon the machinery of the courts became so easy and trials so tedious that the General Court ordered in 1656 " that when any plaintiff or defendant shall plead by himself or his attorney for a longer time than one hour, the party that is sentenced or condemned shall pay twenty shillings for every hour so pleading more than the common fees appointed by the court for the entrance of actions, to be added to the execution for the use of the country."
Under Andros the courts were authorized to make rules for the reg- ulation of court proceedings, and a table of court fees was established, which is here copied from Washburn's Judicial History of Massachusetts, as follows :
" For commissioners of small causes, attachments or summons, Is.
Subpæna for witnesses, 31.
Entry, 38 4ª.
Filing papers, each paper, 2ª.
Francis A. Brook,
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INTRODUCTORY CHAPTER.
Judgment, 6ª. Confessing judgment, 15. Execution, 2".
Marshal's fees on every verdict, I".
Each justice per diem paid out of the fines, 5 ".
In civil actions, entry, 5 5.
Jury on verdict not less than 6& 6ª.
Entering and approving bonds, 2".
Superior Court jury, verdict not less than 6% 6ª.
Entry of action, IO *.
Confessing judgment, 2".
Additional entry fee if over £20, 10 3.
Entry of judgment, 25. Marshal's fee in every verdict, 15.
Governor and council, entry of appeals, 2 > 6ª. Entry of actions, £ 1."
One of the earliest well educated lawyers in Massachusetts was Ben- jamin Lynde, senior. He graduated at Harvard in 1686, and in 1692 went to London, where he became a student at law in the Middle Tem- ple, and was called to the bar in 1697. As is stated elsewhere in this narrative, he was appointed judge of the Superior Court of Judicature in 1712, and was the first trained lawyer on the bench of that court.
In the early days of the province attorneys were recognized as offi- cers of the court, and in 1701 the law was passed prescribing a form of oath to be administered to them on their admission to the bar. By a law passed in 1708, parties were prohibited from employing more than two attorneys, and no attorney was permitted to refuse his services pro- vided he were tendered the legal fee.
Under the provincial charter the office of court practitioner became more respected as the men holding it became more numerous and bet- ter educated. The ministers, and merchants, and doctors on the bench of the Superior Court, without business experience and with little states- manlike skill, gradually gave place to more educated men and in many instances to such as were trained in the law. The increasing volume of mercantile transactions called for wiser counsel and a profounder knowl- edge of law, to aid and advise and plead the cause of those who were
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HISTORY OF THE BENCH AND BAR.
engaged in them. It is interesting to observe the gradual evolution of the profession of the law from a condition of obscurity and almost con- tempt to a field in which the ablest men entered for the exercise and display of their powers. Coggan, and Richardson, and Watson, and Bullivant, and Checkley, and their comrades in the courts had left the legal arena, and such men as Newton, and Read, and Davenport, and Gridley, took their places, and as the Revolution approached still abler men appeared upon the scene.
Mr. George Dexter, in the course of some exceedingly interesting re- marks made by him at the November meeting of the Massachusetts Historical Society in 1881, concerning the bar in the earlier part of the last century, says: "There seems to have been no regu- lar time of study prescribed for admission to the bar. The earliest reference I have found to this matter, is an entry in the diary of Judge Lynde, under date of August 4, 1718; 'My dear Benjamin went to his uncle, Colo. S. Brown, for three years.' This was presumably for the purpose of preparing for his profession, but the father, having himself received a special legal education, may have required more than the ordinary professional training for his son. John Adams, who was ad- mitted an attorney November 2, 1758, had studied with Mr. Putnam, of Worcester, very little more than two years, and had taught a school there at the same time that he pursued his legal studies." Judge Washburn expresses the opinion that the requirement of three years study was adopted a short time before the Revolution, on the recom- mendation of the Essex bar. This, however, can hardly be true, as the order of barristers undoubtedly existed in the province as early as 1761, and the three years study seems connected with the establishment of that order. John Adams writes in his diary of 1761, that, "brother Samuel Quincy and I were sworn before the Supreme Court," and Jo- siah Quincy, jr., speaks of Adams and Quincy being called by the court in 1761, to be barristers at law. In order to become barristers, the re- quirements were three years preliminary study, two years practice in the Inferior Court of Common Pleas, and two years subsequent practice in the Superior Court.
It has been stated in an earlier part of this narrative that the term barrister was abolished in 1806, and counsellors were for the first time
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INTRODUCTORY CHAPTER.
recognized. At the March term of the Supreme Judicial Court for Suffolk county in that year, the following rules were adopted and may be found in the second volume of the Massachusetts Reports.
REGULA GENERALIS.
Ordered by the court` that hereafter no motion for a new trial shall be sustained where the party moving it shall be entitled to a review of right, unless the right of re- view shall be relinquished on record, excepting when the verdict shall have been given against the direction of the court in matters of law.
REGULAE GENERALES.
1. No attorney shall do the business of counsellor, unless he shall have been made or admitted as such by the court.
2. All attorneys of the court who have been admitted three years before the sitting of the court, shall be and are hereby made counsellors, and are entitled to all the rights and privileges of such.
3. No attorney or counsellor shall hereafter be admitted without a previous exam- ination.
4. The court will from time to time appoint from the barristers and counsellors a competent number of examiners, any two or more of whom shall examine all candi- dates for admission to practice as counsellors or attorneys at their expense ; and when- ever a candidate shall upon examination be by them deemed duly qualified, they shall give a certificate in the form following :
5. If after an examination, the examiners shall refuse such a certificate as aforesaid, they shall be required to give a certificate of their refusal, and the candidate may ap- peal from the decision of the examiners to a justice of the court, who will thereupon examine him, and either confirm or reverse the decision of the examiners; and in case of reversal the candidate may apply to the court for admission.
6. If upon an examination such certificate shall be refused, it shall be conclusive, un- less there be an appeal as aforesaid, so that no cther examiners shall thereafter be ap- pealed to without the express permission and direction of the court.
7. No examiner shall undertake to examine any candidate who was in whole, or in part instructed by him in his office.
8. The following described persons shall be candidates for examination and admis- sion to the bar as attorneys, that is to say-firstly, all who have been heretofore admit- ted as attorneys in any Court of Common Pleas in the Commonwealth, and who at the time they shall apply for examination, shall be in regular practice therein ; and second, all such as have, besides a good school education, devoted seven years at; the least to literary acquisition, and three years thereof at the least in the office, and under the instruction of a barrister or counsellor practicing in the court.
9. Before the examiners shall proceed to examine any person for admission as an at- torney who has not been admitted at a Court of Common Pleas, it shall be certified to them by a counsellor or barrister, or by counsellors or barristers, that the candidate has
14
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HISTORY OF THE BENCH AND BAR.
been in the office and under the instruction of a counsellor or barrister, for the term of three years at the least.
10. The certificate, as well of barristers and counsellors, as to attorneys, or the certifi- cate of the examiners as to attorneys and counsellors, shall be returned to the clerk and by him recorded.
11. Any person who has been admitted as an attorney, and as such practiced two years, may be a candidate for admission as a candidate and examined therefor.
12. Every counsellor may practice as an attorney.
13. Whenever an action shall hereafter be entered in court, the attorney or attor- neys for the plaintiff or appellant shall become such of record, and within the first two days the attorney or attorneys for the defendant or appellee shall cause themselves to become such of record.
14. In all cases where parties do not appear in their proper persons, after the first day there shall be an attorney or attorneys of record for the defendant or appellee, and none for the plaintiff or appellant, the defendant or appellee on motion shall have judgment as on a discontinuance ; and whenever after the first two days there shall be an attorney or attorneys on record for the plaintiff or appellant, and none for the de- fendant or appellee, the plaintiff or appellant shall on motion have judgment accord- ing to the nature of the case.
15. Hereafter the court will not hear any argument against on a question of law arising on special pleadings, as special verdict, case stated, or motion in arrest of judg- ment, unless the material papers shall have been copied and delivered to the judge respectively at or before the commencement of the term.
16. All who are now attorneys of the court shall be allowed to advocate causes on issue of fact for the term of three years from the time they were admitted as attorneys respectively, although they were not counsellors."
The examiners appointed pursuant to the above order were The- ophilus Parsons, Christopher Gore, Samuel Dexter, Harrison Gray Otis, William Sullivan and Charles Jackson.
At the September term, 1806, in Berkshire, the court amended the above rules by adding, "that any person who shall have received an education comprising equal advantages with that expressed in the 8th rule of the court, adopted at the March term, although varying in the mode or circumstances, may be examined for admission as an attorney, on obtaining a license therefor from the court or a judge; and if ap- proved by two examiners shall receive a certificate from them conform- able in substance to the 4th rule."
At the March term, 1807, in Suffolk, the rules were still further amended by the order "that all gentlemen proposed by the bar for admission as attorneys of the court, before the establishment of the rules regulating the admission of attorneys published in March, 1806,
.
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INTRODUCTORY CHAPTER.
may be admitted as attorneys of the court in the same manner as they might have been before the establishment of the said rules; and after admission they shall be considered as attorneys of this court from the time at which they were proposed for admission, and before the pub- lication of the said rules, and this rule is to extend to all attorneys who have been heretofore admitted attorneys of the court, having been pro- posed for admission before the publication of the said rules."
At the March term in Suffolk, in 1810, the court repealed the Reg- ulae Generales of 1806, with their amendments, and adopted the follow- ing substitute :
1. That any person may be admitted an attorney of this court who shall have had a liberal education and regular degree at some public college, and shall afterwards have commenced and pursued the study of the law in the office, and under the instruc- tion of some counsellor of the court for three years; and shall afterwards have been ad- mitted an attorney of the Court of Common Pleas for the county in which such coun- sellor with whom he has studied the law as aforesaid shall dwell; having first been recommended by the bar of the said county to the Common Pleas as having a good moral character, and as suitably qualified for such admission; and shall afterwards have practiced law with fidelity and ability in some Court of Common Pleas within the State- for the term of two years, and shall then be recommended by the bar for admission as. an attorney of this court, when holden for the county in which the person so rec- ommended shall dwell.
2. Any person not having a liberal education and a regular degree as aforesaid, who shall have commenced and pursued the study of the law in the office of some coun- sellor as aforesaid for the term of five years, shall be considered as having a qualifica- tion for admission equivalent to the having had a liberal education, and a regular de- gree as aforesaid.
3. Any person having a liberal education and a regular degree as aforesaid, who shall afterwards have commenced and pursued the study of the law in any other State. in the office of an attorney of the highest judicial court of such State for one year at the least, and afterwards shall pursue the study of the law in the office of some coun- sellor of this court for the term of two years, shall be considered as having a qualifica- tion for admission, equivalent to the having commenced and pursued the study of the law for three years in the office and under the instruction of some counsellor of this court.
4. Any person not having had a liberal education and a regular degree as aforesaid, who shall have commenced and pursued the study of the law in any other State, in the office of an attorney of the highest judicial court of such State, for the term of two years at the least, and shall afterwards have pursued the study of the law with some counsellor of this court for the term of three years, shall be considered as having a qual- ification for admission equivalent to the having had a liberal education and a regular degree as aforesaid, and to the having pursued the study of the law for three years im the office of some counsellor of this court.
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HISTORY OF THE BENCH AND BAR.
5. The bar shall not recommend for admission as an attorney any person, either to any Court of Common Pleas or to this court, unless he be qualified for such admission, agreeably to the provisions of these rules. But the bar may recommend for admission as an attorney to the Common Pleas any person now duly qualified by the rules here- by repealed for examination and admission as an attorney of this court ; and further the bar may also recommend to the Court of Common Pleas, for admission as an attorney thereof, any person who before the establishment of these rules had commenced, and is now pursuing the study of the law with some counsellor of this court, when such person would by virtue of the rules hereby repealed, be qualified for examination and admission as an attorney of this court.
6. If the bar of any court shall unreasonably refuse to recommend either to this court, or to any Court of Common Pleas, for admission as attorney, any person suit- ably qualified for such admission ; or if after the recommendation of the bar, the Com- non Pleas shall unreasonably refuse to admit as an attorney the person so recommend- ed, such person submitting to an examination by one of the justices of this court, pro- ducing to him sufficient evidence of his good moral character, may be admitted as an attorney of this court on the certificate of such justice that he is duly qualified there- for, and has pursued the study of the law agreeably to the provisions of the rules.
7. Any person who shall have been admitted an attorney of the highest judicial court of any other State in which he shall dwell, and afterwards shall become an in- habitant of this State, may be admitted an attorney or counsellor of this court, subject to the discretion of the justice thereof, after due inquiry and information concerning his moral character and professional qualification.
8. Any person who now is, or who shall be, an attorney of this court, having prac- ticed law therein with fidelity and ability as an attorney thereof for two years, may be admitted a counsellor of this court, when holden for the county in which such at- torney shall dwell, on the recommendation of the bar of such county, or without such recommendation, if it be unreasonably refused; unless such person was admitted an attorney of this court because he had been unreasonably refused admission as an attor- ney of the Court of Common Pleas; in which case he shall not be recommended nor admitted as a counsellor of this court until he has practiced law as an attorney thereof for the term of four years.
9. All issues in law and in fact, and all questions of law arising on writs of error, certiorari and mandamus, or special verdicts, or motions for new trials and in arrest of judgment, shall be argued only by the counsellors of this court. And the counsel- lors of this court may also practice as attorneys."
In 1836 it was provided by law that any citizen of the Common- wealth or any alien who had expressed his intention pursuant to law to become a citizen, of twenty-one years of age, of good. moral charac- ter might become an attorney after three years study, and on the recom- mendation of an attorney be examined for admission. In 1876 it was provided that the same person could be admitted only on examination,
Dev. a. Bruce
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INTRODUCTORY CHAPTER.
and in 1891 a law was passed providing that "any person who has been or shall hereafter be removed from practice as an attorney by the Supreme Judicial, or Superior Court of the Commonwealth for deceit, malpractice, or other gross misdemeanor, and who shall continue to practice law or receive any fee for his services as attorney or counsel- lor at law rendered after such removal, or who shall hold himself out or represent or advertise himself as an attorney or counsellor at law, and every person not regularly admitted to practice as an attorney or counsellor at law in accordance with chapter 159 of the Public Statutes, who shall represent himself to be an attorney or counsellor at law or legally qualified to practice in the courts of the Commonwealth by means of a sign, business card, letter head or otherwise, shall be pun- ished for each offence by a fine not exceeding one hundred dollars or by imprisonment not exceeding six months, and upon a second or any subsequent conviction by fine not exceeding five hundred dollars or by imprisonment not exceeding one year."
During the existence of the old Bar Association which was formed in 1770 the rules of the association regulated admissions to the bar. The date of the formation and dissolution of the first Suffolk Bar Asso- ciation is unknown. Indeed its existence is only inferred from a vote passed at the first meeting of the association above referred to, " that the secretary wait on Judge Auchmuty and request of him the records of a former society of the bar in the county, and invite him to meet with this society in the future if he sees fit." Judge Auchmuty was attorney general from 1761 to 1767 and probably the first associa- tion was dissolved between these dates,
The second association was formed on the evening of Wednesday, January 3, 1770, at the Bunch of Grapes tavern on the corner of State and Kilby streets, kept at that time by Mr. Ingersoll and after- wards by John Marston. The gentlemen present were Benjamin Kent, James Otis, Samuel Fitch, William Reed, Samuel Swift, Samuel Quincy, John Adams, Andrew Casneau, and Daniel Leonard, all of whom were barristers, and Francis Dana, Josiah Quincy and Sampson Salter Blow- ers, attorneys, and it was voted "that the barristers and attorneys at the Superior Court, belonging to this and the neighboring towns will form themselves into a society or law club, to meet at Mr. Ingersoll's on the
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HISTORY OF THE BENCH AND BAR.
evening of the first Wednesday of every month for the year ensuing." Benjamin Kent, as the oldest barrister, presided and John Adams was chosen secretary. At the meeting on the first Wednesday in October, 1770, it was voted that "Francis Dana, Josiah Quincy and Sampson Salter Blowers be recommended to the Superior Court to be admitted as barristers, they having studied and practiced the usual time." On the 21st of November it was voted that Samuel Sewall, who produced a certificate from the clerk of the Inferior Court that he was admitted as attorney in that court on the first Tuesday in January, 1767, be rec- ommended for admission as attorney to the Superior Court.
At the meeting held on the 2d of January, 1771, it was voted " that whenever the defendant's counsel shall point out to the plaintiff's any defect in his writ or declaration, he shall have liberty to amend upon payment of six shillings before plea pleaded. But it he will put the de- fendant's counsel to plead and the writ or declaration is adjudged in- sufficient, he shall then pay eighteen shillings for the amendment in case the amendment is allowed him by the court, and the defendant shall choose costs instead of an imparlance. This rule to extend only to such defect in writs and declarations as shall be owing to mistake or inadvertence, or other fault of the counsel who drew the writ, or his clerk."
It was agreed at a meeting held February 6, 1771, among other matters, " that we will not take any young gentleman to study with us without previously having the consent of the bar of this county ; that we will not recommend any persons, to be admitted to the Superior Court as attorneys who have not studied with some barrister three years at least, nor as attorneys in the Superior Court who have not studied as aforesaid and been admitted at the Inferior Court two years at least, nor recommend them as barristers till they have been through the preceding degrees and been attorneys at the Superior Court two years at least, except those gentlemen who are already admitted in this county as attorneys at Superior and Inferior Courts, and that they must be subject to the rule so far as is yet to come." To this agree- ment it was added " that the consent of the bar shall not be taken but at a general meeting of the bar for the county, and shall not be given to any young gentleman who has not had an education at college, or a liberal education equivalent in the judgment of the bar."
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INTRODUCTORY CHAPTER.
At the July meeting, 1772, Benjamin Hichborn, William Tudor, and Jonathan Williams Austin were recommended to be sworn as attor- neys. One of the rules of the association was that no member should receive a student in his office without the consent of the bar. Among those entered in various offices according to the records of the associa- tion were Thomas Edwards in the office of Josiah Quincy, 1772; Jon- athan Williams in the office of John Adams, 1773; Edward Hill in the office of Mr. Adams, 1773 ; John Trumbull in the office of Mr. Adams, 1774; Nathaniel Brattle in the office of Mr. Blowers, 1774; Nathan Rice and John Thaxter in the office of Mr. Adams, 1774; Joshua Thomas and Jonathan Mason in the office of Josiah Quincy, 1774; Henry Goodwin in the office of William Tudor, 1778; Rufus Emory in the office of John Lowell, 1778 ; Fisher Ames in the office of William Tudor, 1778; George Richards Minot in the office of William Tudor, 1780; Peter Clarke in the office of Increase Sumner, 1780; William Hunter Torrens in the office of John Lowell, 1781; Edward Sohier in the office of John Lowell, 1781 ; Joseph Hall in the office of Benjamin Hichborn, 1781; Edward Wendell in the office of John Lowell, 1781 ; David Leonard Barnes in the office of James Sullivan, 1782; Edward Gray in the office of James Sullivan, 1783; John Brown Cotting in the office of John Lowell, 1783 ; Samuel Quincy, jr., in the office of Chris- topher Gore, 1783 ; Harrison Gray Otis in the office of John Lowell, 1783; John Rowe in the office of Mr. Tudor, 1783 ; Richard Brook Roberts in the office of Mr. Hichborn, 1783 ; Samuel Cooper Johon- not in the office of Mr. Sullivan, 1784 ; William Hill in the office of Mr. Gore; Fortesque Vernon in the office of Mr. Hichborn, 1784; John Merrick in the office of Thomas Dawes, 1784; John Lowell, jr., and S. Borland in the office of Mr. Lowell, 1786; James Sullivan, jr., in the office of Mr. Sullivan, 1786 ; Thomas Russell in the office of Mr. Lowell, 1786; Isaac Parker in the office of Mr. Tudor, 1787 ; William Cranch in the office of Thomas Dawes, 1787; Samuel Andrews in the office of Mr. Hichborn, 1788; William Lyman in the office of Mr. Sullivan, 1788 ; Nathaniel Higginson in the office of William Wetmore, 1788; Phineas Bruce in the office of Mr. Hichborn, 1788; Bossenger Foster in the of- fice of Mr. Parsons, 1788; Edward Clarke in the office of Mr. Lowell, 1789; John Lathrop in the office of Mr. Lowell, 1789; Robert Paine in
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