The Informer
CHAPTER IV
COLONIAL NEW YORK, PENNSYLVANIA AND NEW JERSEY BAR
New York, like Virginia, adopted the Common Law of England as the basis of its law at a very early date; but as in Virginia also, this did not lead to the early development of any trained Bar. There were two very strong obstacles to success in the legal profession- the supremacy of the merchant and land-holding class, who deplored the rise of any other influential body of men; and the constant interference in, and control of, litigation by the Royal Governors.
When the Dutch Colony of New Amsterdam became "New Yorck," upon the English conquest in 1664, a code of law and practise, known as the Duke's Laws, was promulgated in 1665 as the basis of its government.(1) This code was largely prepared by Mathias Nichols, an English barrister of Lincoln's Inn, partly, it is said, from suggestions made by Lord Chancellor Clarendon, but chiefly from the Dutch Colonial law and the local laws in force in the New England Colonies. It gave to New York a more elaborate system of courts than was to be found in most of the other Colonies, and fixed with great detail their organization and administration.
(1) In 1673, the Dutch again conquered New York, and reverted at once to their old laws; but when Sir Edmund Andros returned in 1674 to reclaim the English rule, he, as Governor, restored to New York, by proclamation, the "known books of laws formerly establisht."
It is evident from many contemporary writings that the Common Law received very early recognition, and the best statement as to its status in New York is that made by Judge Horsmanden in the case of Forsey v. Cunningham, in 1765:
"The Supreme Court here proceeds in the main according to the practice of the courts at Westminster; and the Common Law of England, with the statutes affirming or altering it before a legislature was established, and those passed since such establishment expressly extended to us without legislative acts (which are not to be repugnant to the laws of England) constitute the Law of this Colony." (2)
In 1683, a Charter of Liberties, containing many of the provisions of Magna Charta and of Habeas Corpus Act was framed expressly for the Colony by the Duke of York, and though never assented to by the King, was. always claimed by the colonists to be operative for their protection.
The early courts were those of the small local justices of the peace, sitting in Courts of Sessions, and the Court of Assizes consisting of the Sessions Justices and the Governor and Council. This latter Court not only had full law and equity jurisdiction, but also exercised legislative powers.
In 1683,.the first New York Legislature established distinct Courts of Sessions for each county, a Court of Oyer and Terminet together with other minor courts, and a Supreme Court consisting of the Governor and Council.
In 1691 the Supreme Court of Judicature was established, consisting of a Chief Justice and four associate judges, all appointed by the Royal Governors.(3)
(2) See reported case in N. Y.. Hist. Soc. Collections.
(3) It is a curious fact that just at the time when Courts of Pypowdry (Market Courts) were dying out in England, they were revived in New York in 1692, and as late as 1773 were extended to the new counties.
The first lawyer of New Amsterdam was Dirck Van Schlluyne, in 1653. He had obtained in Holland a license to practise, but, there being no other lawyers in the new city to fight, and consequently no suits, he peformed the duties of notary, kept a grocery store, and finally, becoming discouraged, left the city.
In the early days of the English occupation, the estimation in which lawyers were held will appear from the following entry on the minutes of the Council, held at the Stadt Huys on May 16, 1677:
A Query? Whether attorneys are thought to be useful to plead in courts or not. Answer. It is thought not. Whereupon resolved and ordered, That pleading attorneys be no longer allowed to practise in ye Government, but for ye pending cases."
This was later modified and the Court in 1677 made a rule that:
A No one be admitted to plead for any other person or as attorney in court without hee first have his admittance of the court or have a warrant of attorney for his so doing from his clyent."
It was many years, however, before there existed any trained Bar.
While the records of the Assize Court give the names of a number of "attorneys" appearing for the parties, it is not likely that they were men who made practise of the law an exclusive profession, but rather agents and men of business who were clever at writing and speaking, and so employed by others to represent them in the courts. It is certain however, that there was no such great popular prejudice against lawyers in New York as in the other Colonies; although, in 1683, the same legislation was passed as elsewhere, forbidding sheriffs, constables, clerks and justices of the peace from acting as attorneys in their courts. A few English lawyers of distinction practised in the Colony between 1680 and 1700 -- James Graham, John Palmer and Thomas Rudyard; but the scarcity of lawyers made it so easy for a party to a suit to monopolize the Bar, that, in 1695, a statute was passed which recited that, "whereas the number of attorneys at law that practise at the Bar in this Province are but few and that many persons retain most of them on one side to the great prejudice and discouragement of others that have or may have suits at law," and which provided that no person should .retain more than two attorneys in any suit -- this act to continue in force for two years.
In the account, published in 1744 by Daniel Horsmanden, of the famous Negro Plot case in 1741, it is stated that the whole Bar of the city, consisting of eight members only, Attorney-General Bradley and Messrs. Murray, Alexander, Smith, Chambers, Nichols, Lodge and Jameson, offered their services to the prosecution "as a matter affecting not only the city but the whole Province."
The chief lawyers of distinction in the early Eighteenth Century were James Alexander,(1) William Smith,(2) John Tudor and David Jamieson.
From an early date, the power of appointment of attorneys was exercised by the Governor; and the first license to an attorney bears date of 1709. W. Smith, Jr., in his con-
(1) Born about 1691, came to New York in 1715, studied law after his arrival, Attorney-General 1721-1723, and "though no speaker, was at the head of his profession; for sagacity and business penetration and in application to business no man could surpass him."
(2) Born in 1697, came to New York in 1715.
-temporary history, laments that the Governors at times licensed all applicants, "however indifferently soever recommended," though sometimes they took advice of the Chief Justices. The smallness of the Colonial Bar is shown by the fact that in the sixty-eight years between 1709 and 1776 only one hundred and thirty-six had been licensed as attorneys by the Governor. (1)
Valentine, in his History of the City of New York, gives a list of only forty-one lawyers practising in the city between 1695 and 1769(2)
(1) It is interesting to note that the last license in the Book of Commissioners, signed by the Royal Governor Tryon, is under date of March 11, 1776, and that on the very next page the "People of the State of New York, by the Grace of God free and independent," make their first appointment of & Secretary of State. See In the matter of Cooper, 22 N.Y. 67.
(2) History of the City of New York, by David T. Valentine (1853), Clerk of Common Council.
While professional practise was scanty, and as Sedgwick said, in his Life of William Livingston:
"the great number of cases were collection of debts owed by English merchants and suits in ejectment -- which does much to diminish any regret which may be felt for the want of colonial reports,"
yet the influence of the legal profession upon the development of New York's legal and political institutions was very great. Of this powerful status of the Colonial Bar during the fifteen years prior to the Revolution a very clear picture has been preserved in the letters of Lieutenant Governor Colden, between whom and the united Bar a heated struggle had taken place from 1763 to 1765, over Colden's attempt to force the courts to allow an appeal to the Governor and Council on matters of fact as well as of law. This conflict ended in a victory for the Colonial contention against such an appeal, and this result confirmed Colden in his opinion of the great dangers to the Crown and to the Colony itself from this "domination of lawyers," and from the "dangerous influence of the proprietors of large tracts of land in the Colony," who combined with them to antagonize the Crown.
September 14, 1763, he wrote:
"We have a set of lawyers in this Province as insolent and petulant and at the same time as well skilled in the chicaneries of the Law as perhaps are to be found anywhere else. This requires judges of ability and skill in the law to restrain them, who are not easily to be found in this place, and at the same time disinterested; for the distinguished families in so small a country as this are so united by intermarriages and otherwise, that in few cases, a cause of any consequence, especially where the King's Rights are concerned, can be brought before a judge who is one of these families in which he can be supposed entirely disinterested, or free from connections with those interested either in that case or in other cases similar to it."
Again, on November 7, 1764, he wrote:
"In a young country like this, where few men have any acquired learning or knowledge, where the judges and principal lawyers are proprietors of extravagant grants of land or strongly connected with them in interest or family alliances, it is possible that a dangerous combination may subsist between the Bench and the Bar, not only greatly injurious to private property, but likewise dangerous to his Majesty's prerogative and authority and his Rights- in this Province, in case no appeals as to the merits of the cause be allowed to the King in his Privy Council."
On January 22, 1765, he wrote:
"If the profession of the law keep united as they are now, the abilities of an upright judge will not be sufficient to restrain the lawyers, without the security of an appeal to a court where they can have no undue influence. The lawyers influence every branch of our Government, a domination as destructive of Justice as the domination of Priests was of the Gospel; both of them founded on delusion."
And on February 22, 1765, he wrote to the Earl of Halifax:
"The dangerous influence which the Profession of the Law has obtained in this Province more than in any other part of his Majesty's Dominions is a principal cause of disputing appeals to the King, but as that influence likewise extends to every part of the administration, I humbly conceive that it is become a matter of State which may deserve your Lordship's particular attention.
"After Mr. DeLancey had, by cajoling Mr. Clinton, received the Commission of Chief Justice during good behaviour, the Profession of the Law entered into an Association the effects of which I believe your Lordship had formerly opportunity of observing some striking instances. They proposed nothing less to themselves than to obtain the direction of all the measures of Government by making themselves absolutely necessary to every Governor, in assisting him while he complied with their measures, and by distressing him when he did otherwise. For this purpose, every method was taken to aggrandize the power of the Assembly where the profession of the law must allwise have great influence over the members and to lessen the authority and influence of the Governor. In a country like this, where few men, except in the profession of the law, have any kind of literature, where the most opulent families in our own memory, have arisen from the lowest rank of the people, such an association must have more influence than can be easily imagined. By means of their profession they become generally acquainted with men's private affairs and necessities, every man who knows their influence in the courts of justice is desirous of their favor and affrayd of their resentment. Their power is greatly strengthened by inlarging the powers of the popular side of government and by depreciating the powers of the Crown.
"The Proprietors of the great tracts of land in this Province have united strongly with the lawyers as the surest support of their enormous and iniquitous claims and thereby this faction is become the more formidable and dangerous to good government ....
"All Associations are dangerous to good government, more so in distant dominions; and associations of lawyers the most dangerous of any, next to military.
"Were the people freed from the dread of this Domination of the Lawyers, I flatter myself with giving general joy to the people of the Province."
In spite of the attacks upon it by the Governor, the Association of the Bar continued to act with undiminished vigor, and in 1765 it was largely the originator and mainstay of the determined and successful resistance to the Stamp Act, in New York(1) Shortly after this, the Association went out of existence as an organized body; but the individual lawyers of the day continued to be leaders in the struggle for the rights of the Colony which resulted in the Revolution.
PENNSYLVANIA
Until about the middle of the Eighteenth Century, the development of law in Pennsylvania was extremely rudimentary. Its settlers were active in their opposition to the introduction of the legal subtleties of the English Bar and the legal procedure and processes of the English Bench.
William Penn, the Proprietor, certainly had no reason to love the English courts, for English judges had cast aside all bounds of decency and legal principle in connection with Penn's trial on an indictment for "tumultuous assembly" in 1670. Penn's famous comment on the Common Law uttered in this case is well known; and the following colloquy between the presiding judge in the Old Bailey and the stout-hearted Quaker well illustrates the reason for the popular resentment towards the English law as administered in criminal cases in the Seventeenth Century: (2)
(1) Sir William Johnson wrote to England from New York that the lawyers' opposition to the Stamp Act was for fear that "business must decrease from the duties on Law Proceedings."
(2) See 6 Howell=s State Trials, 953 et seq.
"PENN. I desire you would let me know by what law it is you prosecute me and upon what law you ground my indictment.
"RECORDER.. Upon the common-law.
"PENN. Where is that common-law?
"RECORDER. You must think that I am able to run up so many years and over so many adjudged cases which we call common-law, to answer your curiosity.
"PENN. This answer I am sure is very short of many questions, for if it be common, it should not be hard to produce .... Unless you shew me and the people the law you ground your indictment upon, I shall take it for granted your proceedings are merely arbitrary.
"RECORDER. The question is whether you are guilty of this indictment.
"PENN. The question is not whether I am guilty of this indictment, but whether this indictment be legal. It is too general and imperfect an answer to say it is the common law, unless we knew both where and what it is. For where there is no law, there is no transgression; and that law which is not in being is so far from being common, that it is no law at all.
"RECORDER. You are an impertinent fellow, will you teach the court what law is? It is 'Lex non scripta,' that which many have studied thirty or forty years to know; and would you have me to tell you in a moment?
"PENN. Certainly, if the common law be so hard to be understood, it is far from being very common; but if the Lord Coke in his Institute be of any consideration, he tells us that Common Law is common right, and that Common Right is the Great Charter Privileges."
The Quakers who sought in Pennsylvania relief from such tyranny of English judges were unlikely to welcome any efforts to establish the lawcraft in power in their new home. It is not strange, therefore, that for seventy years after the settlement, the courts of the Province were maintained with practically no lawyers present, either on the Bench or at the Bar.
Nevertheless the early founders and Penn himself were too able administrators to Conceive that the new Province could exist without laws at all;
As a substitute for a trained Bench, the Quakers had from a very early date constituted a system of settlement of disputes by laymen. In 1683, provision was made for the appointment of three "common peacemakers" in every precinct, whose arbitration was to be valid and final as a judgment. In 1705, an act was passed, providing that parties having accounts against each other might refer them to persons mutually chosen by them in open court, whose award should have the effect of a verdict by a jury. Immense numbers of contract disputes were settled by referees in this way.
The popular attitude towards lawyers is shown by the quaint remark of Gabriel Thomas, who wrote, in 1690(1) "Of Lawyers and Physicians I shall say nothing, because this country is very peacable and healthy: Long may it so continue and never have occasion for the tongue of the one nor the pen of the other- both equally destructive of men's estates and lives."
During the first twenty years, there were probably not more than three or four trained English lawyers in the whole Province, although there were twenty-three persons called attorneys whose names are extant. These were, however, almost entirely laymen, with no legal education.(2)
The paucity of lawyers was well illustrated by Penn in 1700, in replying to the charges made by Robert Quary, Judge of Admiralty, of failing to prosecute William Smith, Jr., for a heinous crime. In his answer Penn stated that the defendant had "subsequently married ye only material witness against him, which in the opinion of ye only two lawyers of the place (and one of them ye King's advocate of ye Admiralty and ye attorney general of the county) has rendered her incompetent to testify against him."
(1) An Historical and Geographical Account of the Province and Country of Pennsylvania and of West Jersey in America, by Gabriel Thomas (London, 1698)
(2) Bench and Bar of Philadelphia, by John H. Martin (1883)
The first statute as to the admission of lawyers was enacted in 1722 providing that "there may be a competent number of persons of an honest disposition and learned in the law admitted by the Justices... to practise as attorneys." A form of oath was prescribed in 1726.
The real Bar of Pennsylvania may, probably, be said to have begun about 1740, when Tench Francis, the brother of Richard Francis (the well-known author of Maxims of Equity), came from England. He is stated to have been "the most eminent . . the first of the lawyers of that Province to master the technical difficulties of the profession;" and Secretary Peters wrote that, except Francis and Moland, all of the lawyers of that period "are persons of no knowledge and, I had almost said, no principle."
Horace Binney (the leader of the Philadelphia Bar in the early Nineteenth Century) thus sums up the conditions: "Of the primitive Bar of the Province of Pennsylvania we know nothing, and next to nothing of the men who appeared at it from time to time up to the termination of the Colonial Government.
NEW JERSEY
In the Judicial and Civil History of New Jersey, by John Whitehead (1897), no names of any lawyers practising in the Seventeenth Century are given; and it is said "the Courts of New Jersey were not established upon any settled plan nor upon any perfected system, until about the beginning of the Eighteenth Century." (1)
This statement is only partially accurate, however, for in East New Jersey there is record of courts held in Monmouth County as early as 1667; and in1675, the Legislature created small local courts and a Court of Assize for appeals. In 1682, by statute, a regular system of courts was established, consisting of local courts held monthly, Session or County Courts held annually, and a Court of Common Right having full law and equity jurisdiction and founded on Scotch models. In West New Jersey, statutes as early as 1681 provided for local courts; a Court of Appeals was created in 1693, consisting of the county justices of the peace and the Governor's Council; and this, in 1699, became the Provincial Court or Court of Appeals.
Until New Jersey became consolidated as a Royal Province in 1702, the courts were created by the people. In 1704, the Governor, Lord Cornbury, by ordinance--
(1) In a letter to the Lords of Trade, in 1703, Lord Cornbury wrote: "The first thing we proceeded upon was to settle some courts, and in order to do it, I asked the gentlemen of the Council what courts they had under the proprietary government. They said that their courts were never very regularly settled, but such as they were, it was under this regulation: first they had a court for determining all causes under forty shillings ....
The next court they had was a quarterly court where the justices of the peace determined all causes under L10, and they had a court which they called the Court of Common Right, where all causes, both criminal and civil, were heard .... This Court of Common Right consisted of the Governor and Council."
--established a system of courts consisting of Justices of the Peace, a Court of Common Pleas, a Court of General Sessions of the Peace, and a Supreme Court of Judicature, with an appeal to the Governor and Council.
The Supreme Court records are extant from as early a period as 1702. The first Chief Justice was the English barrister, Roger Mompesson, who was also Chief Justice of New York and of Pennsylvania.
Out of eight of his successors down to the Revolution, three only, Thomas Gordon, in 1709, David Jamison, in 1710, and Robert Hunter Morris, 1738-- 1744, were educated lawyers. Of the latter it was said, that "he reduced the pleadings to precision and method and possessed the great perfection of his office, knowledge and integrity, in more perfection than has often been known before in the Colonies." Few of the other judges before the Revolution had legal training.
There was little early legislation as to lawyers. In 1682, the Legislature of East Jersey enacted that "in all courts, all persons of all persuasions may freely appear in their own way and according to their own manner, and there personally plead their own cause, and if unable, by their friends or attorneys."
The practise of the law was evidently engaged in chiefly by pettifoggers and by the court Officers, for, as in the other Colonies, statutes were passed, in 1676 and 1694, forbidding justices of the peace, sheriffs, deputies, clerks and messengers from practising as attorneys.
In 1698, all attorneys who pleaded for fee or hire were required to be admitted to practise by license of the Governor.
In 1740, an act was passed regulating in detail the practise of law and establishing fees.
It is a well-known fact that in its administration of justice New Jersey has always, even to the present day, followed more closely the old English precedents than any other American State.
As an example, in 1755, the Supreme Court instituted the order of sergeants, in imitation of the ancient English degree of sergeant at law; and in 1763 it was ordered that "no person for the future shall practise as a sergeant in this court but those that are recommended by the Judges to the Governor for the time being and duly called up by writ and sworn agreeably to the practise in England." (1) Later, the number of sergeants was fixed at twelve; and they conducted examinations for admission to the Bar. They were not abolished until as late as 1839.
In 1767, a distinction was made (as in Massachusetts) between attorney and barrister (or counsellor as it was termed in New Jersey); and it was provided that no man should practise as counsellor until he had been an attorney for three years and duly examined in court for the advanced status.
By the time of the Revolution, an organized Bar had grown up; and there is a record of the call of a meeting of the State Bar, in September, 1765, to discuss the Stamp Act, at which meeting it was unanimously resolved to use no stamps for any purpose.
Many of the prominent lawyers became ToriesCIssac Allen, William Taylor, Henry Waddell, Cortlandt Skinner the last Royal Attorney -General, Frederick Smyth the last Royal Chief Justice, William Franklin
(1) History of the Supreme Court of New Jersey, by Francis B. Lee, Vol. I (1896).