How People Became Lawyers
How People Became Lawyers
Growth of the Profession. As colonial society developed and commercial activity grew, so too did the need for competent legal counsel. The earliest colonists had brought with them the long-standing English sentiment against lawyers and had tried to do without them. Massachusetts (1641), Virginia (1658), and the Carolinas (1669) enacted statutes that prohibited pleading in court for hire. Gradually, at first, and with increasing momentum by the 1750s, lawyers became seen as a necessary evil. However, untrained or unprincipled practitioners created problems. In North Carolina lawyers were described as “cursed hungry caterpillars [whose fees] eat out the very bowels of our commonwealth.” In 1771 John Adams described a tavern keeper who kept two books on a shelf in his tavern so that he could be “a sort of lawyer among [his customers].” In each colony the courts or the legislatures set rules limiting the ability of a lawyer to appear in court unless he had been admitted to practice. The requirements varied from court to court and colony
to colony, but each required some form of training followed by an examination or interview administered by members already admitted.
Inns of Court. There were no law schools, so prospective lawyers prepared for the exam in several ways. The Inns of Court were not law schools. They are best described as eating and living clubs clustered around the courthouses in London. Lawyers lived there, and students would read law books, observe courtroom activities, and simply soak up the atmosphere of the British legal system. Since there was no formal aspect to the educational process, the degree of training varied enormously. Some who studied at the Inns of Court obviously benefited from their experience. John Dickinson of Pennsylvania developed an appreciation for the traditions and the orderly processes of the English legal system, evident years later when he wrote the “Letters from a Farmer in Pennsylvania.” On the other hand Charles Carroll of Maryland, who later signed the Declaration of Independence, wrote in 1762 that he found it difficult to study because of “loose and dissolute companions.”
Apprenticeship. A clerkship, or apprenticeship, was the most frequently used avenue to the bar and yet was also the means most often criticized. The apprentice paid a fee to an established attorney in exchange for which the attorney trained the apprentice. In theory the apprentice was to study law in the office of a lawyer, observe court sessions, and perform routine tasks that were part of this training. In many cases these tasks were nothing more than endless copying of legal documents for two or three years. Carroll, after completing his studies in London, became an advocate for the apprenticeship system, pointing out that at least in this manner one might learn the practical side of the law. The more widely held view, however, was that the system did not work well. Adams served as an apprentice to a Massachusetts lawyer and described the study of law to be “a dreary ramble.” William Livingstone, who apprenticed in New York, complained that a law clerk “trifled away the bloom of his age...in a servile drudgery nothing to the purpose, and fit only for a slave.” Thomas Jefferson spent two years as a clerk for George Wythe, who later, in 1779, became the first professor of law at an American college. Though Jefferson admired Wythe and spent these years in intense and fruitful study, he later wrote that an apprentice was generally obligated to provide much more service to his teacher than the education was worth.
Reading the Law. A third method of study was the self-directed reading of law. Patrick Henry read Sir Edward Coke’s Institutes (1628-1644) and the Virginia statutes for six weeks before being examined for admission to the bar. From his argument in the Parson’s Cause, it is clear that he had also read some of the writings about natural law and the concept of a conditional covenant between a sovereign and the people. Alexander Hamilton read law books on his own and recorded in his journal that he had read not only the usual books, including Sir William Blackstone’s Commentaries on the Laws of England (1765-1769) but also works by John Locke and others on natural law. Although as a student he complained, “I do wish the devil had old Coke, for I am sure I never was so tired of an old dull scoundrel in my life,” Years later Jefferson acknowledged that Coke’s Institutes “was the universal elementary book of law students.”
Protecting the Public. Limitations on admission to practice protected not only the public but also the practitioners. Protecting the public was not easy because in most colonies admission to the bar was required only to appear in a particular court; it was not required for someone to handle other legal matters. Anyone, wrote Adams in 1759, including “deputy sheriffs, pettifoggers and even constables who filled all the writs upon bonds, promissory notes, and accounts, received the fees set for lawyers, and stirred up many unnecessary suits.” Gradually the colonies developed rules and requirements for admission to appear in court. The Virginia assembly passed a law in 1748 authorizing its court to control admission to the bar. As a way of protecting the public, a Virginia lawyer could charge no more than five pounds for arguing a case in court. New Jersey’s supreme court in 1755 appointed twelve sergeants at law, a ranking higher than the ordinary counselors. The sergeants had the power and duty to conduct examinations for bar admission. Similar arrangements came into being in most of the other colonies in the mid 1700s.
Protecting the Profession. Protection of the profession seemed to be a more significant role of the bar-admission process. In Rhode Island the members of the bar agreed to a fee structure, including a three-pound minimum for filing the pleadings in a case in the superior court. They also agreed not to defend anyone who was being sued by his lawyer for his fee. In New York City the lawyers who had been admitted to practice in the city’s courts agreed in 1756 to take on no clerks, other than their own sons, for the next fourteen years. Perhaps the efforts of the New York bar succeeded too well. Lt. Gov. Cadwallader Colden complained in 1765 that lawyers and judges were too powerful. Their domination was “carried on by the same wicked artifices that the domination of the priests formerly was in the times of ignorance.”
Laurence Friedman, A History of American Law (New York: Simon & Schuster, 1985);