THE RISE OF THE LEGAL PROFESSION HI bymoglen.law.columbia.edu/twiki/pub/AmLegalHist/Andrew... ·...

THE RISE OF THE LEGAL PROFESSION

couraged by the eculia ..propagated the id~ r SPlflt of a fro~tier democracy whichwas as go d ' so popular among pIOneers, that every mangates to:: t as.a1nyother, and that everyone should find open thechoice B a ehna success and self-advancement in any field of his

. ut t ere were I dI .'professional men who a s~ a goo y nUffi?er o~ highly qualifieddid h

. ' particularly after bemg rsised to the benchmuc to brmg b d 'of" . b a .out an or erly and successful administration

JUStIce y developmg d bilizinor territories W' hin an sea. g the law in these new statesthe frontiers It a short period of time the legal profession in

r states or terri k d .gentry. It h d hi d nrones ran e at the top of the frontiering econo ~ ac reve ,on the whole, respectability, social stand-

l rruc success and Iiti l i 11petcnce it soon beca ' h po tl~aIII uence. In professional com-in the seah d me t e keen rival of the old and established bars

oar states.

,,8

HIBAR ORGANIZATIONS AND THEIR DECLINE

EVERY CLASS ORGROUPof professionally trained and profession-ally acting experts has an inherent tendency to organize itself and~oform a SOrtof close-knit association or "guild." This guild, unlessinterfered with from the outside, sooner or later will compel, ortry to compel, all persons practicing the same skills to becomemembers of it and to comply with the policies, rules, and decisionsagreed upon by the members of the association. In this it frequentlyhas the full support of the law. The primary concerns of such aguild and, hence, also of these rules and decisions are, first, thetraining and education preparatory to admission to the practice ofthe profession; second, the maintenance of high standards as re-gards professional competence and professional deportment, oftenthrough the issuance and enforcement of a detailed "code of pro-fessional ethics"; third, the exclusion of incompetent, "immoral,"or undesirable people from the practice of the profession; fourth.the establishment of good "public relations" through the diligentenlightenment of the general populace, in order to enhance thestanding of the profession in. and its importance for. the com-munity in which it operates; and, fifth, furtherance of continuedimprovements of knowledge and skills among its members through

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the promotion f' . .or ". 0 JOint professional libraries institutes "clinics,"

semInars."l .,

to h Alrebady prior to the Revolution the Massachusetts bar seemsave een well org . d Al hSUffolk B 2 amzeu. tough the Record-Book of the

b ar (Boston) records only the events that took placeerween 1770 and 8 kth tIl °5, we now from the Diary of John Adamsa asearyas 1759 Ad d fth tI ' ams rna e certain suggestions "to some0e gen emen [lawyers] in B "h" d . f

the bar to deliberate [ohsrooJ W 0 prop~se meetmgsdo"

Adam' upon [em .... A meetmg was calle ,s contmues "and a b f donly f fi . ' great num er 0 regulations propose notor Con nmgthe . f h dmitred . d practice 0 t e law to those who were a -to It an SWorn to lid I' . . blariry bani e lty 10 It, lit to introduce more regu-, ur amty candor a d li .and hum . ,,' n po teness, as well as honor, eqUIty

bar r I amty am.0ng the legal practitioners." It is also known thatu es concernmg edu . I' . .

Practice . d canona requirements and admission toexrste as eady 6 J d .entries in John Adam' ~s 17 I. U gmg from the subseq~ent

were a re Ids s DIary, we must assume that bar meetingsMassachusg~ ar~~ establ~shed institution in pre-RevolutionaryNew En land ese meetmgs, following perhaps the example of

g an town meet'whole bar of Suffolk mgs, were held and attended by}hedinners" were h ld hCO~nty. John Adams also states that barPrentiss Mell e b' t at IS, dinners of the bar as a whole;' andof Maine ( Ben, su )se~uentIy Chief Justice of the Supreme Courr

r 20-34 infer hmission to practi h ' " ms us t at on the occasion of his ad-Ice e treated the' d d . habout half a pail f h . JU ges an all the lawyers WIt

called the colt's ~!~~~.which treating aforesaid was commonly'S h a. n r770 the Suffolk County or Boston bar

uc as the "Sodality" fl'New ,York, the Institutio Le ~s co onial .Massachusetts, "The Moot" of colonialof PhIladelphia" of 180l the rSo .of colonial New Jersey, the "Library CompanyForensic Eloquence" of Philade~l~r for ~he Pro~otion of Legal Knowledge andAcademy of Philadelphia" of 18l~ ,; whIch .lost Its chaner in 1821, ''The Lawand the ''New York Law rnstitut' "Tfh' Sod'dial Law Library" of Boston in 1804>

:l Rep' d' e oun e in 18z8 ad' d .nnte In 19 Proceed' f h n Incorporate III ,830•,',_, mgs 0 t e MH"~ h H" .-. I ' ~., ..c mettr zrtoTlcaJ SocIety

a z Adams, Works of John Ad3,1759· See also 3 Adrnns P ams 58n. (1950). The cmry is dated January

.j 1 Adams P p aperr Z74 (Butterfield ed., 196')f>\V ~ erClll (Bunerfielded. I¢I) .

arren, Hlftory of the An' ' .~a.IO; -:J (1917): "Thinking myse::r:.:;; ~;;d~5 (191t). See also Clark, Jeremiah

r ° ew Hampshire, which had y treated by the bar [sci/. by m,recommended Maso' d .. 'n s a mlSSJonto practice

,3°

Bar Organizations and Their Decline

apparently was reorganized along more efficient lines." BenjaminKent, Samuel Fitch, Samuel Swift, John Adams, Daniel Leonard,James Otis, William Reed, Samuel Quincy, Andrew Caz(e)neau(all barristers), Francis Dana, Josiah Quincy, and Sampson SalterBlowers (all attorneys) were the charter members," John Adamswas elected the first secretary." Apparently, the Suffolk bar or,perhaps better, the Suffolk Counry "bar meeting" was mad~ upof all the practitioners of Suffolk County;" and its rules, ~egu~atlOnS,and resolves were binding upon all lawyers who practiced III Suf-folk County by virtue of their membership in the Suffolk bar.

These bar meetings of the various local or county bars,wherever they existed, survived both the Revolutionary and thepost-Revolutionary general omcry against the legal profession. andItS organizations. In Massachusetts each individual court admittedpersons to practice before it. The organized bar, which in th~respect acted as a single and determined unit, recommended c~ndl-dates to the court in accordance with the regulations and qualifica-tions agreed upon by the bar as a whole." By insisting upon theobservation and enforcement of certain minimum standards, thebar to a large extent controlled the profession, including the admis-sion to the study of law and to active practice.P This control ofadmissionwas exercised by means of an examination before a com-mirree of the bar." Every applicant wishing to become a student

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in 1791], I in return !f<lvethem a brave supper at which no small quantity of wineand some wit were expended."

6It held its first meeting on January 3, 1770, at the Bunch of Gropes TavernSituated at the corner of State and Kilby streets.

1 Record-Book of the Suffolk Bar, toe. cit" 147. See note 2, Chapter In,above.

8 Ibid.9 Ibid.: "Voted [at the first meeting] ... [[]hat the ba.rristers and anorneys

of the Superior Court belonging to this and neighboring towns will form them-selves into a.society or club,"

lO See, in general, ibid., passim,]1 Ibid., parrim.l2 By a rule of court of 1806 (2 Ma5S. 7z, 75), the follo~ing lawyers we.re

appointed as official examiners: for Suffolk Cou.nty, Theophllus Parson~, Oms-topher Gore, Samuel Dexter, Harrison Gray OtIS (he declined the appomunent,1 Ma.ss.431), William Sullivan, and Charles Ja.ckson; for Essex County, NathanDane, Edward Livennore, William Prescott, Samuel putna.m, and Joseph Story;for Middlesex County, Artemas Ward, Tyler Bigelow, and Samuel Dana; for

'33'l'


law. Hence, it is not surprising that many of the rules laid downby the bar or bar meetings dealt with persons applying for admis-sionasstudents in the law offices of practicing lawyers."

In 1800 the bar decided that any candidate seeking the appro-bation of the organized profession, if he was not a graduate ofHarvard College, must study law at least four years with a bar-rister;only three years' study were required of a Harvard man."The Worcester County Bar Meeting, during the March term of1784,resolved "that the qualifications for the admission of candi-datesshallbe: a College education, or one equal thereto, a goodmoralcharacter, three years study in the office of an attorney ofthe Supreme Judicial Court, or, being well grounded in the lan-guagesandstudying for five years in the office of an attorney of theSupre~e Judicial Court.vw In 1795 it amended its resolution of.'784, Insisting "that in the future seven years study be requiredInsteadof five years heretofore required from a person who hasnot had a Collegiate Education."19 In I 800 the Suffolk bar votedthat" d bno.sr.u ent. e recommended to the Court of Common Pleasfor admlSslOnWIthout having studied within this county [of Suf-folk~one year at least."> It also ruled that persons "who have~d,ed law or been admitted to the bar in the courts of othertatesha~dwho shall apply for admission to the bar of this county,h' . s a not be recommended without a term of study withinb ~ County,to be prescribed by the bar, provided that [this] terme in no case lessthan Thi ,to th tl one year. IS regulation [was] not to apply

any SO,se,gfenfemen who have practised in the supreme court ofa e or our years "21 I 8 " 'wasad in d . n 17 3 a rvtr. Richard Brooke Roberts

deduc:n ~f as a student to the law office of Mr. Hichbom with astUdies" ~~el~ar from the usual period of three years of law

111~ provl e e produces a certificate from a gentleman of, nOetoherlo 1780 theSuff lkb:to his,l~woffice:l M:, Pet~r Clarke~ Ibi; :~te~una~ously that ~umner take'- at William Hunter Torrens of Ch 1 "80)4. n April 17, 1781, It Consentedow ~'d . ar eston uth f'_ I' "b '~.uent In Mr, Lowell' iii f ' '--'!ro ma, e conSidered as a

171b'd so ce rom Jan I 178 "Ib'd18 ".,174, entry under January 28 18~ I. t., '54-55, and Passim.

Bailey, Attorney d Th ' ' .(1907). s Il1l elr Admission to the Bar Of M h

assac metts 33It Ibid., J4,'OR tcord-Book Of h S21 Ibid. t e uffolk Bar, loc, cit" 174.


in a law office had to undergo such a test. How strict theserequire-ments and how thorough these examinations were may be gatheredfrom the fact that in 1784 two gentlemen by unanimous vote of thebar Were refused acceptance as law students in the office of 11

reputable lawyer because the committee on examinations of theSuffolk .bar found that the applicants had not been adequatelytrained III ;mathematics, ethics, logic, and metaphysics." In '798the committee of the bar> appointed to examine a certain Mr.Holder Slocum reported that the candidate had only a fair knowl-edge of Latin, no knowledge of Greek and an insufficient knowl-edge of logic, metaphysics mathematics and history. Hence, hisstatus as a l d' , h dyaw stu ent was made dependent upon furr er stu ,underth di , L 'e Irectton of a tutor of history metaphysics, and aOn,concurrent w·th his I I ' " h heI ega studies.w It appears therefore, t at rtop¥lar a~d Widespread efforts to simplify acc~ss to the professionYh'°hwenng. requirements of training and preparation-effortSw IC werelllk' ith he E lishcom 1_ eepIng WIt the general aversion to t e ng

monIaWandto h fessi I d' thewake of the R ~ e pro cssional lawyer that fol owe Indeteon' d ,ev?lutlOn_only made the Massachusetts bar more

me to lOSISt hi h . ireof its recomm d .on g educational standards as a prere9ulSif-___ en anon for admission to the study and practice 0

Hampshire wunty, john H .~er wunty, Daniel Bt el OQker,George Bliss, and Eli P, Ashmun; for WOIor Plymouth County J~h ow, Jabez Upham, Edward Bangs, and Joseph Blake;

Whea~on, and Natha~el T~~ Thomas; for Bristol County, Seth Padelford, Laba~~ Bidwell"and john W. H~hast; for Berkshire County, Daniel Dewey, BarnMJ' and Nicholas Emory, forbert; for York County. Dudley Hubbard, Cy~

en, and Salmon Oiase.' <::umberlandCounty, William Symmes, PrenOSS·Hn~.rorKennebeckWU"":' fol

rLincoln wunro, Silas Lee and Samuel Thatcher;.....and F' .. -r» ames B id -r hCount, fllnclSDana Oiannin w n ge and Samuel S. Wilde. In ,807, }osepItld N~dt~~~' pH,OPkinsand ~\cie~~ed to the list of examiners for Suffol~tv Th . a1Dt,SethHastin"" Itrnan to that of Cumberland County,-I' c ~lTllnati(fns ..-. and Dc J eoun-by duee, For txlIllii .....trt Conducted usu azar ames to thar of Worcester,rb.S"lfoJk 8 I n~ 'PPointed p' ally by two examiners. but occasIonally

II (LH It'f~oc, CIt nor to ,80s, see, in general Record-Book ofU"f., I.....entry ,

made up for thw <Od ~nd~f A.ugun u , 'be CbnsidcfCdu ha ,d'ic:tenCIC1," for on j 784, Apparently [he twO candIdates

H 1lic co.-..~l.ng been law studen ~y IZ, 1785,the bar voted that bothG ..•....nee coll1isl:d rs Since Ja~y.lbiJ .. I70.CliUY lid e ofThom Ed Iluary, 1785. Ibid., ,6r,tJ98.(hU~ 170-1" u er ~ 9. 17;; Thwards, J,ohn Davis, and Edward

11Ibid" '10'-11. e COtnllUtteereported on July 90

'34 135


the profession in Carolina that he has read law under such gentle.man's ~irecrion for one year at lease,"> In 1793, Joseph Rowe,by s~eclalleave of the Suffolk bar, received full academic credit forthe .liberal and legal education he had received in Canada." anddurmg the March term of 1804 the Norfolk County bar reportedthat a certain "Th B .h omas . Adams from the State of Pennsylvania,w 0 had been admitted to practice in the several courts of thathere. applied for permission of this bar to be admitted ad eundem

ere, an~ under particular references obtained their consent andwas ~dmitted accordingly."24 The following "Note" was attachedto this report "Th B d .. d . .. e ar 0 not mean to consider this a miSSIOn

as a precedent-being in some regards special "26

b Thus, it appears that the various rules of the bar agreed uponrIall member~ and dealing with the preparation for the study

Foilaw wfere stnctly observed and, wherever necessary, enforced,

a ure ullyto compl . h h deori .. fh ' Y WIt t em eprived a candidate either 0t e ~PhOrtuOlty to be admitted to the study of law in a law officeth 0 t e opportunity of being recommended by the whole bar tot e court or COUrtsi hi h h . ., n w IC e mtended to practice Lacking this

bun~?nnboUhsrecommendation, he could be denied "the call to thear y t e courts hi h. f ' W IC seem to have heeded the recommends-

nons 0 the bar 26 A d Iany t d h ' n no awyer would receive into his office

su ent w a 00 the d . .. dhad b ' recommen anon of the exanunmg boar ,Rul not de~n appr~ved by the whole bar, As a matter of fact, The

8 e,)an sgulations of the Bar of the County Of Hampshire (ofI 05 seem to indicate I h ., , ,a so t at Itwas the Custom for law studentsto regIster with the I Ib hd' "1 oca ar at t e commencement of their Jemllstu les.- b-


The Suffolk County bar'" also passed upon matters other tha~the training for, and admission to, the practice of law, In 1780 itestablished the minimum "tuition fee" of one hundred pounds forany student wishing to enter the office of a lawyer;29 and in 17~3it decreed that no lawyer might receive more than three students 10

his office at one and the same time." The following year it dealtwith "ambulance chasing" by voting that no lawyer might goout of his office and solicit legal business or employ lay persons totransact legal business for him." In addition, it made recommenda-. . f·· tt and professionalnons concerrnng rules 0 practlce, etlque e, ,

ethics." Hence, it seems that Massachusetts or at least .certamcounties in Massachusetts made a determined and effective be-ginning to establish a professional organization through bar meet-

. B B k I . of such apprenticeto the Secretary who shaH enter In the ar 00 t 'ie timeentering such office." Ibid., 36 • .C

. held on the28 Record-Book of the Suffolk Bar, loco cit., 147. At a meeting e

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 ad-mitted as barristers, they having studied and practiced the usual time." Ibid., 148.On November 21 1770 it was voted that Samuel Sewell should be recommen~dfor admission in ;he S~perior Court. Ibid. On January z, 1771, it was vote,d t ~t" h h II· h plaintiff's any de ect 10w enever the defendant's counsel s a pOint out to t e f .his writ or declaration he shall have liberty to amend upon payment.o SiX

shillings .. , , This rule to extend only to such defects in writs and declaratlons asshall be owing to mistake or inadverrance, or other fault of the counsel who. drewthe writ or his clerk." Ibid. On February 6, 1771, it was agreed "that. we Will not

k . . h iously haVing the con-ta e any young gentlemen to study With us, Wit out prevI bf . ·11 mmend any persons to eseot a the bar of thIS county; that we WI not reco .'

d .. h h not studied WI[h somea mltted to the Infenor Court, as attorneys, W 0 ave h hb . h S nf'rior Court w a avearnster three years at least nor as attorneys to t e ur· , hnot studied as aforesaid and been admitted at the Inferior Court, twO years a~~eleast, nor recommend ritem as barristers till they have been through rh~ Plb"dce mgd S . Co <wo years at least, I" 149·egrees aod been attorneys at the upenor urt , .cO . " h h nt of the bar 0 u.e countyn February 6 1771 It was resolved (tl at t e conse d h"1h II ,. . f·1.. bar of the county, an S aJ

S a not be raken but at a general meetlng 0 u.e . IIb . h J t had an educatlon at co ege,

not e given to any young gentleman W 0 las no "Ib'd Se Isoor a liberal education equivaleor in the judgment of the bar, 1 d 15°', eatibid., 159, where the bar voted that a student withour a college e uc-mon musundergo an examination by a committee appointed by the bar.

29Ibid" 154-.157.so Ibid., 157.81Jbid.,158. . . s'a2 On May 17, 1790. the Suffolk bar ag~eed to establish mlOunum ano~ney

fees. Ibid., 167-69.

22Ihid,,157'23 Ihid., 166-(;7,2~Bailey, Atrorne s tmd T' ..

(1907). Y belr AdmfSf/o1/ to the Bar of MassachusettS 3525 Ibid.

. 20 A qualificd person who had bee d . d h .. .dation" of the bar could I n COle t e approbation" or "rccommen-Rules of the Supreme ~~:;: t; r~~upreme Court of Judicature. See General(Tyng) 383-64 (1810). 0 II fCature (Massachusctts) sec. VI, 6 Mass.

"7B '1• aL ey, Attorneys lind Their Admini

(1907). "Whenever an attorne h .011. to the Bar of Afassachllsetts 37prentice into his office he shillY' as an. application for the admission of an ap-

, &lve notice thereof at the next tenn of the Court

....

....


in~ of the whole bar (not merely of the bar of a particular court)WIth rul I " "es app ymg uniformly to all members The bar meetingsheld by the Suffolk County bar-and it would be safe to call the~thus. rather th~n the regular "bar association"-apparenrly wereearned on until 1836,83 when the Suffolk County bar was dis-s~lv.ed and replaced by a SOrt of voluntary and selective "bar asso-ciation."

In. I836 a committee of the Massachusetts bar reported "thatthe revised Statutes [of 1836] ... making essential changes in the~erms of admission and practise require corresponding alterations10 the Rules of the B "34 I dditi ino th "di I. " ar. n a Irion to suggestmg t e lSS00-non of the present "Bar of Suffolk" and the formation of "anA ""ssoctanon of Gentlemen of the legal profession to be called andknow~ by the name of the 'Fraternity of the Suffolk Bar,' "85 thecomm~ttee also recommended seven articles of association. Article2, ,":hlch provid~d for membership, stipulated that "[tJhe Fra-termty shall consist of all such persons as have heretofore signedthe ~a~ R.ules and are Attornies or Counsellors at Law usuallypr~ctlsmg m the courts of this COUntywho may choose to sign thesea:tlcles." Th~ ~raternity was also to be made up of "such otherPI rsons practIsmg law in this county as from time to time shall bee ecred members of th F "" ""b d e ratermty III manner hereinafter pre-sen e and who shall s b ib hese arri "ith h " bi .u sen e t ese articles." Article 4, dealingWit teo jeers of this A ..". .f h

" ssocrauon, provides that "[t]he objectate Fraternity IS to c I . . . . . .

d- u nvate a spirit of friendship kindness and

goo will towards each oth "'f. . er-e-to preserve the punty of the legal

pro ession-cro discount II h. . enance a a use of legal process and all suchpractises as might bring odi di .. .h

L" rum or rsgrace on the administration of

te aw There" 'I. mamlOg arne es are concerned with fees duesfay;.?~e to

lthe Fraternity, and with expulsion from the Frat~rnity

or I ega, ungentlemanlike, or unwarrantable practices. "36 This

83The last e t ...,· I R1805.Jbid., 178-79- n_J In t re «cord-Book of the Suffolk BilT is dated March 18,

34MS R dBorefers to the ec?r ok of the Fraternity of the Suffolk Bar I. This re rt

Record BOOkR::::~d :tatutes. (Massachusern) of '836, chap. 88, sees. '9-24_ ~eThe Law e rntermty of the Suffolk Bar is quoted in part by POll d35;er 211_12 (1953). See also Pound. The Lawyer 15. n ,

"/b'dcordBook of the Fraternity of the Suffolk Ba;, loco cit., 1.I _,1-14.

1)6


Fraternity at one time may have merged with the Social LawLibrary of Boston," which was founded in 1804 for the purposeof building up and maintaining a law library and of improvinglegal learning.. The Fraternity of the Boston Bar, which reflected the transi-

non from local bar meetings by the whole of the bar to a "selectiveassociation of lawyers," essentially was a voluntary association ofattorneys who wished to join or subsequendy were elected to thisassociation. While its avowed purposes in the main were those ofthe old pre-Revolutionary "bar meetings," it apparently no longerexercised any control over prelegal education, legal training, andadmission to practice, which by now had become a matter of statelegislation." It had no supervision over the professional deport-ment of norunembers and only an ineffectual control over the con-~uc~ of its members. Being devoid of all practical and e~ectiveSignificance, it is not surprising that it soon went out of existence.

In 1849 an attempt was made to establish a Massachusetts"State Bar Association." At a meeting of Massachusetts lawyersfrom all parts of the state, held on January 4, I849, "it was resolvedthat an association be formed and a committee was appointed toprepare a plan of organization to be reported at an adjourned meet-ing to be held on January 18 [1849]."39 On that date the committee,consisting of twenty lawyers, reported nine articles of association.The Preamble to these articles reads as follows: "The undersignedmembers of the Bar in the Commonwealth of Massachusetts, ac-tuated by a sense of the dignity and honor that should pertain to aprofession established for the administration of justice~uponwhose fidelity to its high obligations to security, welfare and ~~ralelevation of society must in great measure depend; and believingthat an organized system of communion of its members throughoutthe state, will be productive of equal gratification and advantageand promoting more frequent and extensive social and friendlyintercourse, and in the increase of mutual respect and confidence,

87Report of [he Committee of the Fraternity of the Suffolk Bar, RecordBook of the Fra[ernity of the Suffolk Bar, loco cit., : I, 13f.

83Revised StatuteS (Massachusetts) of 1836, chap. 88, sees. Ig-OO.89 The Association of the Bar. This is a six-page pamphlet, of which a phow-

static copy can be found in the Libnuy of the Harvard Law School. Pound, TheLawyerH3-15 (19B)'

1)7


and may be alike beneficial to the public and themselves, as con-ducive to the maintenance of high standards of professional dutyand character, and as distinguishing those who recognize and de-sire to sustain the true position of members of the Bar, and exon~r-ating them from all communion in reputation with those ,":ho dIS-grace it-thereby declare and assent to the following Articles ofAssociation. "40 The first Article provided: "The purpose. of theAssociation ... [isJ declared to be the cultivation of SOCIalandfriendly intercourse among its members, and the elevation of ,thestandard of professional duty, education and characrer.?" J?-ruc!e3 provided for a "Solicitor" who was "to receive all complaints mwriting signed by any member or members of the Association andreport them to the Executive Committee. "42 The original pro-posal of a "Bar in this State," to be found in Article 3, was amendedto read, "persons admitted to practice in the courts of the Com-monwealth," thus abandoning the idea of a single organiz:d statebar. A further amendment provided that where a complaint wasreceived of any professional misconduct, the "Solicitor" was tosubmit it to the COUrtof the COUntywhere the suspected lawyerpracticed or where he resided in order that the court, if it saw fitto do so, might take appropriate steps. Also, the complaint was tobe signed by the complainant himself rather than "by any memb~ror members of the Association." These last two amendments sen-ously weakened the disciplinary and supervisory functions of theassociation: the COUrtsonly rarely acted upon such complaints;and the requirement that the complainant personally sign the com-plaint imposed an invidious task which few people wished to pe~-fonn. What the State Bar Association tried to express was pn-marily a consciousness of the meaning of a learned profession, arealization of the need of becoming organized in and through aprofessional association as a vital element of this profession, andthe feeling of the need for continuity of purpose in order to main-tain and even enhance the profession according to its noble tra-ditions. Incidentally, nothing came of these earnest proposals. Anera which markedly tended toward deprofessionalization was not

40 Ibid.41 Ibid.42 Ibid.

138

. d Their DeclineBar OrganizatIOns an d S Bar. e tate. h f a strongly organtZfavorableto the escablis merit 0 . d

Association." here also existed an orgamzeProbably as far back as 1768 t Massachusetts. Like ot~er

baror "bar meeting" in Essex Coudnty, rnber of rules concermngdb dopte a nu ., ancounty bars, the Essex ar a len rh of legal tralI~m~,

admissionof students into law offices, g nded for admiSSion -tkf being recornme he rangeneral requirements or e~ u erior Court, or to t.. 44

practice in the lower courts, m the S!an Essex Bar Assoc~a~lOn,IIof barrister. In 1806 there was fon::e nnized bar" compnsll~ awhich, however, was actually an ~5rgT'he first article of the .sex

.. . E sex County. d meenngslawyerspractlcmg 10 s h II be two stated h t "[rjhere s a f hat theBarAssociation declare tab "In view of the act t

annually of the members of the ar. it can no longer be asce~-d trernely scanty, 8 and agamsurviving recor s are ex .' n was In I 3I, d. hi b orgamzatlo '. 1 cary anrained how effective t s ar b ciation With vo un. d sa ar assoin 18"6 it was reorgamze a

) '. t Massa-selectivemembership. I of Franklin Coun y, B fOn August 3, 1812, the. awyefrsthe Gentlemen of the Rar10,

.. . "meet1ng a "1 Bar u echusetts, joined mto .a" The decided to adopt t re of the barthe County of F ranklin. r f r the government dfor t~e County of ~ampsh~:~e 'f~~ t~at purpose shall i:;l:~:!~~of this county until a new 8 the bar of Fran hby the bar."47'On December I8

h,'l.kI2~he rules of other Mass~c. u-

uI muc 1 e . I gal trammg,adopted a set of r es ve~ ith prelegal educatlon, ~ f profes-setts bars. These rules ~ea t Wl also provided srandar . 0 II withand admission to practlce; theY

not to associate profesSl?nha,hYeriffs,

Yswere h'ps Wltsional conduct: ~ttorn~ the bar; fonn. parmers 1 for the purposepeople not adm~tted. t urchase securities or debtseditors to inducebrokers, or credttors, P dvance money to cr

. h eon'oraof bringing SUltst er ,

. , p face iv (1900)' . f4S1bJd.,114-15' B rAsrociatlon re. d Re<t7,latlons 0. f h Essex a hi t Rules an ,._44MemOrials 0 ted f om the pamp ebe gathere r d

4t'iTbis may also (1806) . . ~la5SachusettS. haf EHex . H no:hue. In "the Bar in the Cou.nty. 0 hat the county of arnr-48This would Imply t,. nized bar.an ear ler orga Bar Rules I.41 MS, Franklin County

139

...


them to bring actio . hei db'F' n against t err e tors." The organized bar ofranklin County apparently dissolved in 1835.

490nh.March ?' 1842, the Massachusetts legislature passed anact. w ~ch provided. "The counsellors and attorneys at law ...residenr ill the 1 '. severa counties ... , except Suffolk sn arc herebyconstituted corpo ti . hi hei . '.. fa ons Wlt m t err respectIve counnes, for thepurpo.se of holdmg and managing the law libraries belonging to said~ount~es, ?y the name of Law Library Association of the countym which It is formed." The clerks of the several courts were toc~ll the first meeting of these corporations within sixty days aftert ~act took effect. At the first meeting held under this act inBerk-:hire COUnty officers were elected and a committee to draft by-.nrh was appointed by all the counselors and attorneys practicing~ t e County. These bylaws were adopted on June 30, 1842.

owever, no local bar organization or bar association ever de-veloped from the La Lib A "N

. W 1 rary SSOCIatlOnof Berkshire County.ew Hampshire had an 0 . db hid .. rgaruze ar w ich as early as 1788,

an agaflnhm18°4, laid down "General Regulatio~ for the Gentle-menOteBar"HA .th h h . t a meetlOg of all the members of the bar~~;!~ut t f e state of ~ew Hampshire, held on the thirdid lu ay 0 June, 1788, It was voted "that the Society will con-

SI er t emselves as a c .Pro di orporanon, and bound by the votes and

th c'he.mgs at any :egular meeting of the Bar."1i2Itwas also agreedat t IS new "SOCIety" h ld bBar throu h h S s au e called an "Association of the

G tl gout t e tate of New Hampshire" and "that theen emen of the Bar in th . . 'meeting aft h err respective counties, at their first

er t ese rules are adopted, form themselves into a48 Ibid., 5--8, 11-1l. See Pound The Law49Manachmettr Actr lind Rer~lutiom ;er :;7"""'98

(1953).IiOThis exee cion m .' I 42, ap. 94, secs. 1,2.

ton) already had aP"So . I'LY b'Le~Plamed by the fact that Suffolk Coun"' (Bos-b

cia aw Ibr~"," Se&" , b d .,a oYe. - J' ... x a ave an note 37, Chapter Ill,

1i1It will be noted that th "R I' " .the Bar" th· II ese egu auons apphed to the "G" !

, at IS, to a persons admitted to the bar and . . enuemen 0not merely to certain members of the pr f' h pnctlcmg before it, andvoluntary and selective bar .. 0 CSSlon ": ~ had chosen to join in a1i2G f assoCiation, or had been mVlted to do so

CTil ton Cou1lty BaT Records, Proceeding,"! 'h '

OUlltyBaT Arrociation for 1891 2 Gr..ft _J C e Grafton and Coor'8,ff o. .,-_ W ''') on II"" oos Counties B A

• .:x:C ;w;u alker, "Rules of th Co " ar nociationAssociation Proceedings. e un, 4 Southern New Htmlpshire BaT


county society.'?" But there exists no record that the "Associationof the Bar throughout the State of New Hampshire" survived itsfirstmeeting. Itmust be surmised, therefore, that it was not really astate-wide bar association, but rather a state-wide bar conventionto stimulate the formation of individual local bar associations ineach county. Its recommendations, however, apparently wereadopted by the several county bars or, at least, by the bar. ofGrafton County. This becomes evident from the record whichdivulgesthat at a regular bar meeting of the Grafton County bar,held on December 4, r804, it was voted that the General Reg~la-tions for the Gentlemen of the Bar in the State of New Hampshire,"which had been laid before this Bar,"54 be adopted .

These General Regulations, which followed c~osely th~ :uIesof the Suffolk County bar, contained the followmg prOVISIons:"The members of the bar in the several counties ... shall formthemselves into societies, and be bound by the ~ules and v?tes[made]by them. "1;5 "Each county society shall appolOt a comrDltteefor the examination of candidates.l''" "No person shall be ad-mitted as a student or recommended for admission to practiceunlesshe sustains a ~ood moral character; and in case the can?idatefor admission as a student in an office has not had a degree m thearts, he shall excepting a knowledge of the Greek language, beduly qualified to be admitted to the first class of stude.Dtsat Dart-mouth College. Which qualifications shall be ascertalOe? by thesaid committee of examination . . . and no county socrery shallrecommend any candidate for admission to pr~cti~e, until theyhave ascertained by their said co~ttee ~f exammatlon, that suchcandidate has made suitable profiCIency m the knowledge of thelaw."57"No candidate who has received a degree in the arts shallbe recommended for admission to practice, unless he has, by theprevious consent and approbation of a county society, regularlyStudied three years ... in the office of some resp~ctable member ormembers of the bar practising before th~ Supenor Court. And nocandidate who has not received a degree III the arts shall be recom-

53 Grllfton Cownty 8ar Records 18Sff.54Ibid., 201-202.

55 Art. I.56 An. IV.57An. V.

'f'

•

THE RISE OF THE LEGAL PRO~'ESSIONmended for ad . .f mlSSlon COpea" Ias a oresaid. "~8"N cnce un ess he has studied fiveyears

of a student at la' ? ~mber of the bar shall receive for the tuition~fty dollars for thV

10. offic~ any sum less than two hundred ands e orne requrr d b h " "100 to practice "69 UN e Y t esc regulations for admis-

of any perquisij 0 student at law shall be allowed the benefit. e or prof ..In which he studies rs ansmg from the business of the officeemployment d . '" nor shall he engage in or pursue any other

urlng any fmember of th b pan 0 the term of his study "60 "Noe ar shall hay . '.at anyone time n h II e more than three students III hIS officeth ,orsaheke de consent of tI ep a Stu em ... in his office withoutme d d te county society "61 UNn e for ad . . . 0 student shall be recom-

d mISSIOn to pe "poun ed to the cou . acnce . , , without having been pro-Pe d' my society f hecee mg. "62 "A or sue recommendation the rerm~OUrtof Common j1erson having been regularly admitted in aIII su h eas and pea ti d " "c courr shall b . c ise two years With reputationto th b ' e entitled to .' .e ar of the Su' a recommendeeion for admissionshall b . penor Coun »ea "All "" "" e In the COUnt . admissions to pracOceAfter the denial of ad ~h~re the applicant has last studied."64

recomm d . rrusston . f. en atlon to be drni ... as a student or the denial 0catIOn of rh a mltted to' .. e same cand'd f . practice no subsequent appli-Sustained h 1 ate or eith f h "admi at t e same term f h er ate said purposes shallbe

ISSIOOto ° t e cou Ad fthere f b an office by an rt. n after the refusal 0a Y the sa Y county so " li "

county, "65 "A me candidate shall cle:y, n? app catlonregulati ny person haVing d~e sustamed ill any otherpIeted t~ns a 'parr of his time in a stu led conformably to thesebar in an'yre'h1duein this State or hny.other state, and having com~

at erst ' avmgbee d I "terial points simil ate Where the rules of n. U.J admitted to the

ar to the fOregnl"n d adnusslOn are in all ma~~8An gan h ."' A .VI. avmg conformed to the

n. VII.60 An. VIU.6l An. IX6~AnX'.. ""

Sta ~n.XU. See also ateo[sClI., New Ham h' ark, /ere71ti4hMtlSon

fC<Julredthreeyea • Ps treJ.wasregulatedb th 23 (1917): "Ad' .had SOmetimes bee~ ds:udy WIthin the State 6 e rules adOpted by~'Obn to that

64An XI Lspensed With." ,Ut ... the stud in . ~ al.".They6~An' v, Y g WIthin the State

.XV,


samemay be recommended for admission in this state provided therules and practices of the bar from which such person comes grantthe same privileges to candidates going from this into such stateand not otherwise.'?" "[N]o member of the bar shall give aid orCountenance to any suit or process commenced by a person notadmitted to practice in conformity to these rules except by licenseof the county society. "67

Beginning with the year 1805, the bar of Grafton Countywas called "Grafton County Society.?" and its fairly regularmeetings, at least after 1820, were officially referred to as "BarMeetings."69 In 1838, the year the records end, the Society ap-parently disbanded.

In I843 the legislature of Maine passed an act abolishing alleduca~ional.requirements for the admission to practice: any citizenor resident In the state from then on could practice law." Prior tothat year, in Maine, as in Massachusetts;" the bar, or, as it also was~all~d,the "Society of the Gentlemen of the Bar Usually Practic-mg in the District of Maine," exercised a stringent control overprelegal education, legal training, and admission to practice. It alson:ade recommendations concerning professional ethics, profes-slOna~discipline, and rules of court. Hence, it appears that the bar~ee.tmgs in Maine were originally made up of all lawyers practic-mg m the same district or counry, and that the rules and regulationsadopted by these bar meetings were binding upon all lawyers whopracticed in this district or county by virtue of their membership10 the same local bar.

The so-called Old Bar Record Book,12 which reports all the

6(1Art. XVI. It will be noted that according to Art. XVI of these GeneralRegulations, New Hampshire established the principle of "reciprocity."

61 An. XVII. See also Bailey, Attorneys and Their Admission to the Bar ofMassachusetts 37-39 (1907)'

68Grafton County Bar Record! 2:0.Oil/bid., :38--62, See, in general, Pound, The Lawyer 201-:04 (1953)·10Maine Actr Il1IdRerolves of ,84), chap. n.71Maine was part of MassachusettS until 1820.n A copy of [his Old Bar Record Book, which was found among the effectS

of the late Samuel Titcomb of Augusta, Maine. is in the library of the HarvardLaw School. See Pound, The Lawyer 188ff. (1953), frOin which the followingquotations arc taken, The original is in the custody of the Supreme Judicial Courtof Maine,

143

•

I


length of study," and rules concerning the continuity of full-timestudy." There were also several rules dealing with professionalethics and deportment: no member of the bar was to permit anyperson not qualified under these "bar rules" to do work as anattorney in his office or in his name." Students were not to be usedas "runners" or be permitted to receive or appropriate any part ofthe lawyer's regular fees." In 1800 it was voted that a secretaryshouldbe chosen in every county to communicate with each other~oncerning all rules and regulations adopted at any local bar meet-mg.52 This last entry would indicate that separate bar meetingswere held in the several counties or localities. Between 1789 and1800 the "bar of the District of Maine" convened no less thantwenty-seven times: once in Biddeford, New Gloucester, T0ps-h~m,and York; twice in Augusta, Hallowell, and Waldoborough;eight times in Pownallborough; and nine times in Portland. After1800 the bar meetings always convened in Augusta. They werecalled, at least until 181 I, "meetings of the Bar of the County ofKennebec.v'" After that year they were referred to as "meetings ofthe members of the Kennebec Bar."84. Apparently there also existed a bar association or bar meetingm Cumberland County (Portland), Maine, as early as 179°.

85 Itsfirst recorded meeting, in which the association constituted itself,was held in Biddeford, Maine, in 1789. It is quite possible, there-fore, that the Cumberland County Bar Association, at least until1800, was identical with the "Bar of the District of Maine."Around the year 1800 the various county bars of Maine began to

THE RISE OFacti . . THE LEGAL PROFESSIONvines of the early M 'me . amebar be' . hetmg of the tI -uegrns WIt an eotty about "abarr

Mai " h gen emen usually '" . . fne, eld in Bidd f d praetlcmg III the District 0matt . e or on Ocrob 73.. e.rsltwasvotedthat"[t] er 15, 1789. Among othertlClllg in the D' . he gentlemen of the Barr usualiypnc-th isrncr of Maine f the purpose of conformi . orm emselves into a Societyforof students to that o~;;::~ their pra~tice in Court & the admissionchuserrs .... [T]hat th S entlemen in the other parts of ... Massa-several Secretaries of ~ ~cretary be directed to procure fromthea copy of the rul tear of the Counties of Suffolk and Essexco' es & proceedi funnes to be laid b f ngs 0 the Barr in their severalThat h e are the Bar' h D" '. sue rules as shall b r In t e rstnct of Marne.. , .Maine, shall be fairly t efadopt:d by the Barr of the Districtofattome h rans erred mr h id ' ,a " Y ereafter admitted . . 0 t e sal District, & by everydInISSlOn... " (th . WIthin the same, at the time of rheir

sumabl h e remainder of h ...Y t e sentence conti t e page IS illegible, but pre-The Old Bar R nued to read: "be sworn to'')."

concern' ecord Book I' 'mg consent o-i a so contains numerous entriesrecomm d . e- ven to taki den anons for ad " ng Stu ents into law offices,mend cand'd llUSSlOnto p , "li

I ares for admi . racnce, refusals to recom-qua ficati f ission to p , reIons or admiss' racnce, rules concerning the

IOn as a stud -7ta 01 ent, ' rules concerning thed BIl7'Record Book

74/bid LR ' '-3, Pound Tecord Book the folJo .' ke Lawyer t89 (,

1789. "(It was Voted Jhwlng Interesting entry 953). On pages 5-7 of the Old 8111'Salmon Chase, a pers~ t George Thatcher £Scan be found, dated October %7,place, and opened an n ately removed from'th qs be requested to walt upon Mr.regular admlssion.~ office here Wlthou, h ~ tate of New Hamn.hire to thISti f ~an atto aVlng d c-ons 0 the Bar of 'h mey ... and ~~ . pro ueed a certificate of hISIi IS Co .....quamt h'P ance therewnh 0 h' mmonwealth and th 1m of the Rules and Regula-Bar." M.r. Chase pr;mi~:~an before the; shall c:

tt~e Bar expects a strict com-

would "then request of tm:o produce the re uire nSlder. him as a member of thetlons thereof & the La Bar an admis:s.io; d certificate and added thac he,,_ () ws of the Co accordmg '0 _C I

""_ '953. That M.r Ch mmonweal·L" lb' "lie ru es and regula-somedl . asew u,. ld 1 Pheld' eyay, may be gathered ir ~ SUbsequently duly" d' ound, The Lawyert m . ork Old HilT Record ;m k e faCt that in 1795ha RUtted, although Witho practice In '795. 00 32. He is also list de attended a bar meeong

75/hd ff e as haVing b 'I .,16 .,29, 3 r H " een admitted

70/bid ·,3 ....."'2,*., Ii, '3,"'0.

iT/h"dIJ 1.,13"Inorderto Iico ege graduate or ha.ve th qU? fy as a law student, th

e eqwvalent of a coU....... d e. applica.nt had L_~.. _ e UClltlOD. to ..... a

'44 145

i8lbid., 17.10.711 Ibid., 11, 28. Pound, The Lawyer 190'""91(1953)'80 Old Bar Record Book \)0.8Ilbid., 88. But a student might be paid a gross sum, the amount of which

was to be independent of the legal work done in the law office. Ibid. See also

Pound, Theuwyer 191""""92(1953)'82 Old Bar Record Book 54·881bid.84 Ibid., 71. Pound, The Lawyer 191 (1951)' It is presumed that there also

existed a Kennebec County Bar Associa.tion which da.tts back [0 the year 184/.This Association, which was still in existence in 1887, might have been the "suc-ceswr" of the "meetings of the members of the Kennebec Bar."

~ Da.yton, Hinory of Cumberland County. Maine 84 (1880).

•

THE RISE OF THE LEact separately 1 GAL PROFESSION

arare "A .' n any event h fssocatio " ' t e ormation f distirecorded 86 I n of the Cumb loa isnnct and sep·

D" . n 18 hat i erland Cou Iistricr of Mai ;,9, t at IS, about the' my awyers hasbeen

bar published ,~ne apparently dissolve~lme when the "Bar of theCumberland "8~ule~and Regulations of the CU~berland Countyadopted 0 F' ArtIcle 8 sees d the Bar 10 the County of

n eb •. I an 2 lithe varion rUaIy I, 1827 b h ,are so ke Rules 2 and 3s counr b ' yt e con .of the "Bar f y ars and record d . venuon of delegates of

that the C 0 the District of M . e ,~nthe Old Bar Record Book" umbed d arne 88 th .SUccessor" I an County Ba A' . a~ It must be presumed

h0 the old" r SSOClat .

t e Cumbe I Bar of rh D" . LOO 10 a way was thethe Asso . r .and Bar claimed "[ ]he . rstncr of Maine. "8~In r864b ClatIOn [th b t at It ay the then . e ar of Cumb I ppears by the records that

praCtlt' . er and C ]preserved ad' lOners 10 the C ounty formed in 1805

dn mamrai ountyofC bun er the ho til tamed Until th urn erland was duly

S Sesy eyearS'tate. _ . the Stem of legislati r 35-smce which timeI' organ" anon th heavmg no r lZatlOn _ [ at as prevailed in this

ecord ev . . seems] t hIn Connectic en of its dissoiun ?'llO ave fallen into decay,

attorneys - ur, Where I on.a . mcreased - a ter the R .hSsoClation" wa f rapIdly and h evolution the number of

ar of HanfordsCounded in 178 Pber

ap.s unreasonably 91 a "barchusen h' Ounty L·k 3 Y thIrty ,n s, t IS Hartf d . I e the "1 I -two members of theI eys practicing in Horbar associatio OCa bar meetings" in Massa-ay dow anfo d n Was a .

nu" 0 rules and r County h meet10g of all artor-Olmum . regulat' , Wac .

gene I requrrements IlIons for the ad . ~nvened 10 order to

ra regol . 0 egal' mISSIOn IIless. I atlons de I- traming d' a aw studentsIOoacd amg·h ,amI' 'V

on UCtof law Wit the pra . SSIOnto practice andermon yers Ctlce of I 't, presumabl . aw and the pro-

~ec._ yunde h .=e nOte 90 Ch r t e lORn Ad ,~pte J uence f

and ReguI~~pted on Man:h \ II, below, ~nd h 0 other New Eng-form trons of the B . 3_ 18~9. Ate eOnes .L ,C~n be found' ar III Cumb I photostati pondmg text.

4'Wyt'r I III the L'b er ~nd Co c .reprod .8~ 9J~ (19n). I l';1ryof .1.. unty," ""hi UCtlon of the "RulesO/dB R u,e Ii~ ch ap .

8'H ar ~cordBook .fVard L~wSc pear III pamphletVolliJ:Jtuy ere, too, the tnn' .IIJ_I'I. hoo!. Pound The

to and selective "barslt!on [rom the '. '• , QRuJ~sitnd R~"""l• ..: USoci~tion" ....~O~gl11al"bar". u,. J ...- ...ons of h -~, ue 1.._ or "bIn the st:I. .... tT~mi4b Mas t ~ Cln1lberl OUl>Ctved ar mee[ing" to ~

teofConne' onl6(ll It11dBQr'et:Jcut, and b9 7).111 1798 th AssOciQtipro ably many rno ete ""ere ~t~nI (186'1).reo east 1:0 Jawy,,,

'46


land ~tates, as early as 1787 is said to have had a bar organized inmeetings :onsisting of the whole profession. These meetings metregularl~ I~order to formulate rules dealing with the training for,and admission to, the practice of law: "The practice of the Court\:-,asto refer to the members of the bar all applications for admis-:lOnsto it.""Vlhen, in '79', Jeremiah Mason applied lor admissiono.practlce in the state of Vermont, "the Chief Justice, at the

~nvate suggestion of Mr. Bradley __ . opposed ... [his] ndmis-S100."ll3Mason continues: "My reason for believing that Mr.Bradley made this suggestion, was that when I requested him topropose me for admission, he advised me against it, and recom-mended to me to remain six months longer in his office." He saidhe wo~ld propose me if I persisted in requesting it, but that Ishould in all probability be refused. I told him the bar would rec-ommend me to the court ... _I felt confident that he had no doubt~hat the court would comply with the recommendation of the bar

If I had the aid of his influence."?"As early as 1744116there existed an organized "New York

Bar Association." This bar association apparently invited the sup-pan: of every member of the professionll7 in order to develop col-lective opinion, encourage concerted action,IIS and prevent inroads~pon the practice of law.99 Although the "New York Bar Associa-tion" went out of existence in 1770, the desire for some sort of or-r-nization apparently survived. In that year a law club, known as

The Moot," was founded "to encourage a more profound andample study of the civil law , historical and political jurisprudence,

&2Ibid., ZI.1131bid. Stefan Rowe Bradley was at the rime a prominent lawyer in

Vermont.• 94 Mason hlLd studied law for more than twO years altogether, but for only

eIghteen months in Vermont. Clark, Jeremiah MalOTI ~I (1917)'

115 Ibid., ~1-1~n. Incidentally, the twO Associate Justices overruled the Chief

Justice, and Mason was admitted after all.tIThe years 1741, 1745, and 17'17 have :lIsa been suggested .97 There were onlY:l handful of lawyers inNew York at th:lt time, however.98For instance, in the strUggle for an independent judiciary. It also fought

some of the measures introduced by Lieutenant Governor Colden, and <:ol~

leetively resisted the Stamp Act of 1765.t9 See Qlroust, ''"The Leg-al Profession in Colonial Amerka," Part 11, 33

Notre DllTlJe Lawyer 350, J58 (1958).

'47

THE RISE OFand th THE LEGAL PROFESSIONe law of nature "Joo Th

For SOme rim frer e Moor was dissolved in 1775,lm. eaterrh R Iutiized bar wharevc e eVQ uucn, New York hadnoorgan-York. Ogden H TfrexCept the Law Association of the City ofNe\\'<land a long list o~ ~a~ ~as the first president of this Association,... Chancellor J t e ~lghtest luminaries composed irs members.wltich he said in part. , em ... delivered the organic address,illusefulness and P ". W ~.cannot estimate too highly the work,f d practicability f binati ..Dnne by the uni f 0 com matron and sssocsrsnof the elevation ~fonho,members of the bar for the common objectth . Ii t err profess hi h d dCJr rves and th . ron, to w c they have evore

bi err sacred hI·· dCom marion arc f onor. n every sense assoctanon anorh asuseultorh 1 al i. ...er corporation' "102 B . e eg pro ession as It IS to anyand volUntary or' , .ut this Association was a purely selectiveflu garuzatlOn and h hili·ence Onprofessional . .' ence, ad no contra og m-oi a real bar ass . . q~alificatlOns and deporrmene.t" The lackCh II OClation In N y k·· . fance or Kent's f ew or IS bafflmg in the hght 0of the City of Ne amy

OUsaddress directed to the Law Associationbiii . work 0rues attached to th on ctober 2 I 1836' "The responsi-rno t e professio d : .s momentous cha n an practice of the law are of theto be fi d racter Its b

btte for the great d " mem ers, by their vocation, ought

to e ex offi . Utles of pub I" 1·[ ·dCto natural gu eli IC 1 e, and they may be SaJ

over the c '. ar ans of th I . Isd OnstltUtlons and lib' e aws, and to stand sennne

I."htyf' . : that is mare impe ~rtl~s of the COUntry, I know of noIg t ul m th rat1Ve In its . . . d. . e perfonnance h reqUlSltlOns,and more e-

qutres of Its vario ' t an that which h 1th I' us professors T t e . .. aw ... re-to e ah,:,,".Is,and ought to be a .... he cultivation and practice of

po tIcal em' , sure road to drender th mence and fame p 'd personal prosperity anind emse1vesWOrthy of ' ~OVIed the members of the Barandu~:t t~eir knOWledge, inr~;~~ cO~fi~ence, by their skill and

y epOrtmenr, their pu' ,an onor, their public spirit100 Sea B' . nty, moderation, and wisdom. "lIM

... austem 'WYork Law lOUNUlJno .,. Aew,York Bac A ..........: '........ prd ~"",.atlOns p .

101ChroUSt: "ThaL 1 3, 1951,pp.1186 1188 :nor to r870," uS New, ... e6 prot: . '.10220 Proceedingr of th essJon in Colonial A .J03 The' _ A . e New York Bar" . me:nca." Joc. cit. J6t.

. . ... w SSOClal:i f n.JlOCl4ti 'clatlOnoftheBar fl:h . ono NewYork . 0l'l69 (1897).

J04 0 e City of New York was not m e.tistence WKent, Memoirs and L Wali organized' hen the Asso-

mers 235ff. (I~). In 1869--71.

'48


In 1826 the New York Law Institute was founded'?" (a mem-bership corporation, it was formally organized in 1828 and incor-porated in 1830), "for literary purposes, the eultivati~n. of legalscience, the advancement of jurisprudence, the providing of aseminary of learning in the law, and the formation of a lawlibrary."lG6It was also hoped that the New York Law Institutewould be instrumental in guarding the purity of the professi?nand in exerting a wholesome restraint upon lawy~rs through in-

vestigations and power of expulsion. Such functions, however,were wholly outside the scope of the Institute. ~t ?ad ~ever been,and never was meant to be an active bar aSSOCIatIonm the sense,of a professional organization supervising a~d controlling its mem-bers.>" Of its five announced purposes, It developed only thelast one, namely "the formation of a law library." This was madeamply clear by Albert Matthews when he stated in I~70: ,"[TheLaw Institute] is practically nothing more than a consulting h~rary,open during the business hours of the day."?" Nevertheless, It ha~a wholesome influence on the New York bar. For many years Itserved as the sale meeting grounds for the le~al professi~n o.fNewYOtk, and its "Junior Bar Group" was particularly active m pro-viding for instructive forums and lecture programs.109 In this theNew York Law Institute might have followed the example ofPhiladelphia, where, in 1784 and 1798, some law students foundedunofficial societies to conduct moots and promote better legaleducationYo It might also have been inspire? by the ~aw Acad-emy of Philadelphia, founded in I 8~1,. which was mtended toprovide for law lectures and moots.u Smce the New York LawInstitute could not possibly substitute for an active "bar associa-

105In all there were nineteen subscriben to the constitution, as drafted byChancellor Kent, among them Ogden Hoffman, John Duer, Thomas Addis Em-met, David Ogden, and George Sullivan. Chancellor Kent was chosen as the first

president.106Cbarter of the New York Law Imtitute chap. 48, Laws of ,830, sec. I.lG7See Pound, The Lawyer 215-16 (1953)'lG6"Fi1"5tMeeting of the Association of the Bar of the City of New York,"

1 Association Reports 11 (1870)'11111 Blaustein, "New York Bu Associations," loco cit., 1188_110 See below.111 Sec below.

149

THE RISE 0ti " F THE LEGAL PROFESSIONon, or even co e . h

~rofession of Nt ~Jt kthe many problems confronting thelegalfish a "Legal Alli W .?~'an attempt was made in J 835 to estab-

. ance InNew Y k C· Thimet With camplet fail or ICy. is attempt, however,T e uremh Phi .Ph. e ilade1phia bar ..

J1adeJphia Bar A " orgaruzatlOn or, as ir is called today, theti SSOClatlOn b .muous bar DICM' • • • may e considered the oldestcon-f P . b~nIZat10n 10 th U . d So hl1adeJphia fa d d e mre rates. In 1802 the lawyers

. un e a La Lib ·1orgamzation or c . W 1 rary Company, an unoffcah vtporanon . h ks ~re, to be held b the WIt stoe fixed at twenty dollars a

art1c1esof inca Y. members of the bar of Pennsylvania.Thed rpOratlOn whi h -an enrolled on M ,Ie were Signed on March 13 1802,

Ia ay 13 18 U8 • '. wyers, among th ,02, were subscribed by seventy-twos 11 em all the p . fIOn. 4 This Law Lib rommenr members of the pro os-lraryC .started and presero d d . ompany, It should be observed, wasexisted in but a f e urmg a period when organized local barsfl" k ew states d .rc er our of e . an were m many instances soon to

I XlStence.r .~ 1784, and again in r 8

p aCtlt10ners in and 7? ' some law students and youngerto d around Phil d 1 hiThcon UCtmoors and t a e p ra formed unofficial societies

h~se societies did natO pro~ote better legal education in general.

t err d· SurVIve bur'un erlymg ideas .' It seems that they, or at least

AAcademy of PhiladeJp'h~v: unperus to the founding of the Lawcade la m 1821 IIO: Thre . mJ:"Wasto supplement th .. e purpose of the Law

hcelved In law offices with I e practIcal training which studentst e Readings and Moots off ec~ures and moots-somewhat akin to

112 Wiekser "R ere at the Inns of Coun in London.118

(I930);RJaustein:'.N ar Associations," 15 Co It113 "H' : ew York Bar ASSOciations '~/e ~4W Qwlrter/y 390, 394J!'

Su lStOrlcal Address b H ' oc. Cit., "86,p~eme Coun of P . Yon. James T M' ,Deltvered March ennsylvarua, The Law Asso ... ltchell, ChIef Justice of the

the Cmtennial C ?;, 1.9~2,and Papers PreparedClao.On of Philadelphia," Addruses16ff. (''}olZ) C>_~ e_~ ration. of the Law Assoc' ,~r Republished to CommemorateL '..:><:'" ,"",soHann "Th 1a IOn.of Ph1 d I h·aw QUarterly 301 (, ) a, e Organized Bar' p ,.a e pia, Pemssylv.:vzjp

114,u, h 952 . m hiladelphia" 1, T-pl,J~lltCell "H' ' ~,..

'" p , lStorical Address" I .eter S du P , OC.Cit.

SOCiety of law s~de onceau. who as far back abelow. Ilts, established the La A s 1784 had been a me b fw cademy. See no m er 0 a

Illi Reed "Trai . te '99, Chapter IV,the Carnegie F~U1Jdati:1o~Ot~~~:ubJje Profession of the La "

'lJanCementof Teachin. w"s Bulletin. ofg 432 ('9lt). A Sod

l50 eo/


Some time before ISH a "professional society" was e~tab-lished,subsequently known under the name of "The ASSOCIatedMembers of the Bar of Philadelphia Practicing in the Sup~emeCourt of Pennsylvania." This society, which in 1821 publishedits "Constitution and By-Laws," established a com~ittee of "Cen-sors" to watch over the practice of law and report msta~ce~ o! un-professionalconduct to the association for appropriate disciplinaryaction. These "Censors" also were to suggest to the aSSOCIatl?nchanges in the rules of practice which, if approved by the asso~Ia-rion, were to be presented in proper form to the cou.rt~ for 'possIbleadoption. One of the primary purposes of this aSSOCIatlon,It se.ems,was "generally to aim at maintaining the purity of prof~sslOnalpractice."!" The "Constitution and By-Laws" were subscnbed toby sixty-seven lawyers, including the leading members of thePhiladelphia bar of the time. In 182 I the Associated ~embers oft~e Bar of Philadelphia began to negotiate ~ ~erger WIth the LawLibrary Company. Since nearly all the principal members of theLaw Library Company belonged to the Associated Members .ofthe Bar of Philadelphia.':" the connection between these tWOSOCIe-ties must have been a close one from the very beginning. In 1827the original charter of the Law Library Company was am~ndedand the new charter created "The Law Association of Philadel-phia,"ll9 which was but the consolidation of the twO societies.

l20

In 1835 the "Detroit Bar Association" was founded !or thepurpose of establishing a law libtary and in order to supervISe and,

for the Promotion of Leg:tl Knowledge and Fo.rensic ElOlJuence, !.nc~:)J'Po.nt[edin1811in Philadelphia soon lost its chaner and dISSolved. MI[chell, HlSwncal Ad-dress" loc cit l,ff 'These "law societies" or "Jaw clubs" founded for the purpose, ' ., . . f "Th Sodali "ofof promoting legal education might have been fashIOned a ter e ty ,Massachusens (1765-67), or "The Moot" of New York ('77~5)' T.he Sodah9'was a group of :tbout seven Boston lawyers who Studied certa~n. classIcal. texIS III

order to produce "at the bar. , . a purity and eleg:tnce, :tnd a spmt s,urp~mg any-thing that ever appeared in Americ:t." Chroust, "The Legal professIOn III C;I~lalAmerica." Part I, 33 Notre Dame Lawyer 51, 86ff. (1957)' "DIe Moot ° ewYork was also intended to encountge a more profound and ample stUdy of the

law.lbid',HO,361 (1958). .117 Mitchell, "Historical Addrcss," loco CIt., 19·118 Ibid., 31.llil Ibid., p. .. .'121)Tn 19}1 this Law Association of PhiladeJphia became The PhdadeJphla

Bar Association.

151

THE RISE OF THE LEGAL PROFESSIONwhenever necessary t dis' .misconduct 121 Th R 0 cipline lawyers guilty of professionalfirst entrv the re e efcord Book122 of this Association has asirs

-J porr o a "BarM . "h IdI835. when it. d eermg, e on November '9,. ~vasVote aroon b "Il1.ltteeto investi h g ot er matters to appamt a com-of the bar ga~e t e professional conduct of a certain member

, to appoint a co' .fee bill for p fessi mnuttee to consider the propriety of "a

IO essiona] servi "d " "look into the feasibili 0 lC~, an t~appomt a committee tobench and b Th ty f creatmg a law library for the use of both

ar. e next entr d dtaineda resolut'o h y, ate December 21,1837, con-I n to r eeffectth t"" h ""of this Bar the . fi h a In t e OpInIOn of the members

Circuit of the Sl; rmf

ea.lrh, of t~e Presiding Judge of the Firstthe performance a}~? ~l:hlgan. ISsuch as to disqualify him formittee be appoin~ed ::~ .Claldunes." It w~s also voted that a com-Select Committe f h lOstr,u:ted to notify the chairman of theentries, covering ~ho t ~ JudICIary of this resolution. Additionaldeal with disciplin e peno~ from August 5, 1839, to April, 1842,dinner, resolutions ~ hrod Iems and minor matters, such as a barand notices of the ~ t e . earh of a prominent member of the bar,

A "Bar A ~es~gnatton or the death of judges 123h SSOCIattonof the Sf' .. .' . .ave been the pion tate 0 MISSISSIppI"which mighth eer among th . 't e United States "P I e state-wIde bar associations withinb ,parentywaso' d iar association the .. rgamze ill 1824.124This stateM' . . ,ongm of whi h iISSISSlppi,on August c 15unknown, met at Natchez,unanimously resolved o~lh1824, Joseph E. Davis presiding, andstan, Judge of the Sup t CoOCcaSIOnof the death of Louis Win-C" reme urt of M· " . .ourr, That the memb f hi 15SISSIppland of the Circuitth If erso t IS as "e e t arm, for the . SOClatlOndo wear crepe on

space of thIrty days "125 I "121Se P . t met agalO at. e ound, The La

DetrOlt Bar Ass ' , wyer 208, 216 (I ) Th "oClatlOn Was Wil" W ?53, e chIef promoter of diepremeCounofM' h' ..am oodbnd e . dday Miehi n Ie Igan from 1828to 18p. Ie h g , IU ge?f the Territorial 5u-Associat' ga State Bar Association is the d' as been claImed that the present-

]2~~ Ireer descendant of the Detroit Bare manuscript f.L·A photOSl:ati 0 UlISRecord Book' .

The Lawyer ~~~; Can be found in the HarvardlSL: ~hDe~it Public Library.123p 953)· 001 library, See Pound,

ound, The L124 tRawl d awyer 208-10 (1953).

6 (an ,Courts Iud d5 1935). ' ges, IlT/ Lawyers of Mississi .

]26 Mississi .S ppJ, 1798-'955 355-pp, tate Gazette (Natchez) Au

, gust 21, 1824.

,

'5'


Natchez in December, 1824, to listen to an address by WilliamGriffith, secretary of the association.P" At a third meeting, againin Natchez (at that time the only town of any consequence inthe state of Mississippi), early in January, 1825, the association dis-cussedand filed a memorandum for the state legislature concerningcertain problems arising from "the system of the United Statescourts within the states newly admitted into the Union."!" Thisstatebar association lasted until 1851,128and perhaps longer.

There seems to have existed a "South Carolina Bar Associa-tion" during the 1820'S and 1830's, which was addressed byThomas S. Grimke on March 17, 1827;129there was also a "barassociation" in Arkansas, organized in 1837, when the constitutionof this organization was adopted. The records indicate that a meet-ing of this "bar association" was held on January 15, 1838.130sb~lawyers in Kentucky, in 1846 or 1847, likewise formed a "bar or-g~nization" (of which no permanent records seem ~~ have s,?r-vived), as did the bar of the City of New Orleans, LOUISiana,whichin 1847 adopted a constitution under the name of "Association ofthe Bar of New Orleans." In I855 a "bar association" was charteredunder the name of New Orleans Law Association, and its bylawswere adopted in 1856.131 In 1828 some lawyers who practiced be-fore the Supreme Court of Alabama organized "The Library So-ciety of the Bench and Bar of the Supreme Court of Alabama" in

126Ibid ..December 18, 1824·127 I Rowland, Courts Judges, and Lawyers 355, 356--57 (1935)· See also

Small, "Check List of Proc~edings of Bar and Allied Associations," in Hicks,Materials Q1IdMethods of Legal Research 440, 467 (2nd ed., 1933)'

12BI Rowland, Courts, Judges, and Lawyers 409 (1935). On November 15,1851,the association gave a farewell dinner for William L. Sharkey, Judge (andChief Justice) of the Supreme Court of Mississippi, Judge ,of the Circ~it Court,and Judge of the High Court of Errors and Appeals. V,c~sburg ::rl-WeeklyWhig, November 19, 1851' This event seems to be the last aV:lllable eVldence con-cerning the activities of the association.

]211 See GrimkC An Oration on the Practicability IJ1JdE:rpedience of Reduc~ing the Whole Bod; of the Law to the Simplicity of a Code, Delivered to theSouth Carolina Bar Association, March 17. 1827 (18z7), reprinted in part inJ\1iller, Legal Mind 148-58 (11}61),

laOSmall, "Check List," Joe. cit" 444, See also 6 Proceedings of the Bar ASio~ciation of Arkamtu 49ft (1904),

131Louisi(J1laState Bar ASiocUttion Proceedings (18g8-18g9)· See also Small,"Check List," lococit" 4/52.

, 53

THE RISE OF

T ITHE LEGAL PROFESSION

USca 00sa.132 Thi S .. IS OC1C'Y hi Imamtenance of 1 ' W ic 1 financed the purchase and

b hi a SOre y needed 1 libers p dues,133 dish ded i aw cary through annualmem-Ass . . an ed in 1838 184 Th C· .. vcrarion, which was' . e mcinnati Law Libraryobjects "the impro mcorporated on June 5 1847 had as itsS . vemene of it b '. "CICOceof the La dIS mem ers, the cultivation of the

W, an the found' f .125 members of th C" . anon 0 a law library." Of theh e rncmnan b . 8Caner members 135B ar In I 47, no less than !OJ were

boneville, Kentu~ky e;:WDeebn ~837 an~ 1839 there existed in Bar·byth I ,a e arm<:TSo " . .e Deal bar "to i d b CICty, organized as It seems,

I . n nee and enco '.... on a I unporram bi urage a more free Interchangemi d su Jeers which . . .In '" [and] to for h bi are ... mteresnng the active

also concerned itself m. hal1t~ of ~ef1ection," This Society, whichoth wtr egislari a1er matters touchin ve propos s, legal reforms andoth ' g upon the acri " f h 'er ISSuesdebated h b " vines ate profession, amongtu ky tea oiirion f 'Ic ,the constitution I' f 0 capira punishment in Ken-provement schemes d"'Yh 0 fe~eral financing of internal im-b ,anterest' fy a property qualificat" 138 netion 0 the universal suffrage

Tl' Ion., ,lUS,It appears that with a f '

gan~atlons Was in exist .c ew eXCeptIOnsnone of these or·of t1Ill So f ence lor more th 1· ., e. ar as it Can b . an a re atlVely shorr penodto oth e ascertaIned .er states, territories . . ' no senous efforts were madeProf . . , or CItIesat th' .eSSIOn10 some kind of "b ~stl~e to organize the legal

. The original Am' " ar orgaOlZatlOn" or "bar meeting."whIch . enCan bar meet" " "bm many instances date b k mg or ar organization,"was formed by and of aJ/la :rs ac t~ pre-~evolutionary days,

U2 ,,__ B cl wy practlcmg 10 a district county""""raney"O ' ,

(194~). In ibid 66g • ur Law Books" 3 A/abben; of this So", • can be fOund a JiStof I~w ~a Lawyer 361, 367-311practitioners ,""hty· The list Contains fifty~'oyers and JUdges Who became mem-

o t e Statn ur names am h .13a '. .... , ong t em the leadmgIn Its aim this So "

New YOtk Law Insti clety Was Very similar to the aSponding text) which tute /see notes l05-1!. Chapter Il~no~nced purpose of thebe maintained that th;;':lS ound~d at approximatel the • a o~e, and the corre·legal materials in e I Aever~ve1(mg dean:h of 1aw~o kssame tlme, Thus it could

lH rt i "bary merlca led the lawyers to ,,~::.~_:and,.,other authoritativeS POSsl Je that the So " -.vuate,

and t:;~,~n,oclGey,"OUf Law ~~~ ~~;.C;~ne,d7,ona limited scale through "44"" treater Cinr:i7m ' .,.

UB Dishman "Som ilh and Its PeOPle 195 (LeonardEighteentbA7l1lUaiM .e Great lawyers of Kentu ky" ed., 19~7)·

eetmg of rbe Ke11tllcky Stilte Bilr AC• "P~oceedings of the

110CIQtlO n 1[1_lj (1919).'54

..,


or state. Irs rules and regulations, it will be remembered, werebindingupon all members of this district, county, or state bar byvirtueof their membership in the bar. The founding of the ~'barmeeting"was prompted by the realization, keenly felt, especl~llyby the New England lawyers, that a responsible legal profess~onas a whole had problems, responsibilities, and functions whichtranscended those of individual lawyers. But under the steadypressurewhich progressively deprived the bar of its previous con-~ol over prelegal education, legal training, and admission to prac-nee, the various bars or "bar meetings," especially those of Ne~~rEngland, which once had greatly flourished, were dissolved or,.ms?me instances, replaced by voluntary and selective "bar asso~la-t10~S"which had no supervisory powers whatever. TIl.e !'1amelegislature, for instance, in 1790 "objected to the assccianon ofmembersof the bar and the formation of bar rules" as "illegal andunwarrantable usurpation. "137 The lo~sof these super.visory func-tions removed the prime reasons which once had stlmula~ed thefounding and maintenance of these "bar meetings." With thepower to control education and admission also went the power tocontrol professional deportment, From then on any member of th.ebar could become a member of a voluntary association wherever Itcould be found, provided he wished to do so, an~ ~rovid~d he cO'~ldsecure the consent and approval of the aSSOCIatlon.Smce an 10-

creasingly enlarged proportion of the lawyers were thus out ofreach of any responsible organization, a competent and respon-sible profession could no longer be guaranteed. As a matter offact, the irresponsible elements in the profession soon seemed topredominate. Such elements also began to cause the increase ?f. anof .. . d the profession138-an 0pUllonU avorable public OptOlOnto"":arwhich has lingered on inAmenca. . . '

Undoubtedly, the social and polincal backgroun? agamstwhich the early American lawyer developed had somethl~f :0 dowith the decline of bar organizations dunng the s~-cal1ed ~ddleperiod." The young American society was ~re.doml~anrly a Rlonee~or frontier society, agricultural and rural 10 Its mam pursUIts an

137Cbyt0n HirtoTy of Cumberltmd Coumy. 84 (188;), I' f the138See also' the many references [0 the ,":"d,esprea unpopu anty 0

lawyer after the Revolution and during the l83oS, m Chapter I. above.

155

THE RISE OF T. HE LEGAL PROFESSIONInterests A .

· . pIOneer society h . . . .Or 10 profession I .'. owever, does not believe 10specialists

a orgaruzanon hi h .contempt "The e: S W ic It eyes with suspicionand. . e pIOneer," Po d' " .to anythmg H u1 un pomts Out, feels himself equal· .... ewo dleapatIO? as he chOoses. "139 A1s:e everyone free to change his occu-especIally the legal {. ' he did Dot see why a profession,

d pro essron whi h iun er a cloud sh Id . rc a rer the Revolution had come· . ,ou orgalllze .renumscent of B .. h ' or remain organized in a mannerrrns vr pre-R I' 'tempts to organiz h - eva unonary ways The early at-E eteprof' ..rom colonial days. rh { essron Were essentially carry-oversIi d i . ey ound '.ve mclusive "b '. expression m a few relatively short-

f h ar argall1Zatlo " hior t e Wholebar 140 TIt ns W ich vainly hoped to speakabl~ dealt the d~ath bl e advent of "Jacksonian democracy" prob-f~~lon. Statutes thro ?w thOany organization of the legal pro-CIt wmgtep' {izens or Voters W h racttce 0 law wide open to alltt' eretecoma lUgeffects which rhi man result. Deploring the devas-Whole, Samuel Hand 15new policy had Upon the profession as aA '. , second idSSOClatlOn,lamented' presi ent of the New York Barthefirehave poured intoI~heI879{that "[d]uring the last thiry yearsun t by I pro essio 1. cu ture or training h n... arge numbers of men,rntn any Ie d Or c aracte bof s h I a:ne profession. Hu d r to ecome incorporatedM c a arshIp or letters h n reds of men without a tincture

en '. un h' . " aVe found th . .English I~n COUt III manners and ha . eI-:way 1Oto aUf ranks.ye 1\1 guage ... [are] vulga . . bIts, Ignorant even of theou:rth oses Strong, first presidernlZltng{th

heprofession. "141 The same

at now "[]h 0 t e W' .knowled f t ere are practic U 15consm bar, pointedof admi ~ea laws, Or knowledge a r no p~erequisites, of eitherthe not,·sso,onhtothe bar."H2 Pioneerod anythIng else, as conditions

n t at th· emocra' b' .Callingby t " e specIally trained cY. III nef, rejectedraUlIngad, man the fi .Society. It refused n expenence, should h ~an tted for hiSfree democ . to.acknowledge the f ~ve hISproper place innition and i~~~~OCl~tyto a large exte~~t~eat the stability of any

P ratIOn of the tea' d . .rends On the recog-138Pound "A Ille Spectalis .

coe Pound. " ~ ETas~ for the Univeo;ih. L t mto the organiza-, B J:erclses Qt tb D d' or aw School" Add

'93, rooklyn Law Sch ,ee Ication of RJ b' ressof Dean Ros-,.. W· 00. C I1Tdson Hail N

leber "Bar A""~n: . , ovember 10HI N ' ~aUOns." loc . ,1423 W~ YO~k Btlr Assoc;atir.m Rep Cit., 390, 392ft".

, ISCofJSmBtlrAssoc;ationR p0rt67 (1879).e on 13 (1879-8;).

'56


tion of that society, whether as "umpire" between contending in-terests or as efficient instrument of social control.

Open hostility rather than fair recognition was accorded toany professional group which sought privileges, even though theywere only the privileges and duties springing from a common mem-bership in a learned profession. Hence, it was no mere accidentthat the New England "bar organizations" and "bar meetings"shouldcome to a sudden end during the era of "Jacksonian democ-racy." The Suffolk Bar, as has been shown, disbanded in 1836, asdid the bar of Cumberland County in Maine. The Fraternity of theSuffolk Bar suffered the same fate soon after 183 I, and the Bar ofthe District of Maine came to an end in 1829, although it continuedto linger on as the Bar of Kennebec County until r841. The Bar ofFranklin County in Massachusetts disappeared in 1835, and theBar of Grafton County in New Hampshire ceased to operate inr838. The Bar of Essex County in Massachusetts miraculouslymanaged to survive until 1856, but an attempt to start a State BarAssociation in Massachusetts in 1849 failed dismally, as did a similareffort to form a Legal Alliance in New York in 1835. The "barmeetings" held in Connecticut (since 1783) and in Vermont (since1787) simply passed out of history. The laments uttered by theCumberland Bar in Maine could certainly be echoed by the whole~merican legal profession: "[U]nder the hostile system of legisla-tIon that ... prevailed [in the several states] ... the members [of theoriginal bar meetings] ... have yielded in despair to the spirit ofreckless innovation upon old and established principles, and the[bar] organization[s] ... have fallen into decay."14S

Strong efforts also wete ma~e to drive the l~wyers from theirprofession and to prevent the eXIstenCeof any dIStInct bar . To besure, since colonial days, there had always been legislation em-powering every litigant to be represented by an "agent" of hisown choice, including a person not "officially" admitted to, Ofespecially qualified for, the practice of law. ~ut now this "privi-lege" of the parties, which in the course of tIme had less and lessbeen made use of, was rnrned into a deliberate policy fostered bylegislation and purposely aimed at depriving the lawyer of his

14SRules and Regttlatio7ls of the Cumberland BaT Associati07l I (1864). Seealso note 85, Olapter III, above.

I57

THE RISE 0 F THE LEGAL PROFESSION

professional srandin i h .COUrtsof I A g n t e commuruty at large, no less than in the

aw. re not th Iwhose co hi e awyers, wrote one pamphleteer, "thoseill manon COver th I d d .invest their hi e an an who have even contrived to

have they ot f l~atlOnswith the sanctity of the law? ... Andnot ortified thei . '. .rich and th blis ell unions WIth alliances ... WIth the, usesta hed d

aristocracy in e a prou ,haughty, overbearing, fourfoldOUf country' Th k .own powe d ] . ... ey now that the secret of theirran weathc .. h . .Th k onsisre III t e stnctest concert of acnon.. . . ey now from' .

have always en bl d h experience that urucns among themselvespreposterous s~tee 0; t~~ewto rule and ride the people.'?" "[T]hisby union amon I mgs could only have been brought aboutthings [who hJ ~ awyers and by their combineuon'vv-a "state of

IC IS perpetu d bof the bar uni . ate , y means of the quarterly meetingsmons 10 every co h h . "146Kentucky' 8 unry t roug out the nanons .

. ,mr46 pro d '.agamsr the legal f' ' pose a constitutional amendmentM . pro essron In N H' .

arne, after 1843 148 d i . ew ampshire, after r842,147Inor resident150 wa' a?] 10 WIsconsin, after r849 149 every citizenh senrItedtob dmi '

t e proof of good moral e a mmed to practice merely onConvention of 18so dcharacter. The Michigan Constitutionalgood moral characte:o~ . repeatedly to extend to every person of~opractice ~n any cou~.,;~gJw:nty-one y~ars of age, the "~j~htIn Its ConstItution which f ntil 1932, Indiana'w had a prOVISIon

144Robinson Pro sa eguarded the inalienable right of everyJackSOnian D ' gram for Labor (18) .

145{b'democracy J2~1 (Blau d 34 , repnnted in Social Tbeorier of146/b;/33I. e., 1947),especiallyat 330.

H7N 'Hew ampshire R .148 Maine A ewsed Stl1tUtes 81411IV' ' ,ctsandResolvesofl8, 'hi 42,chap.I77,sec,2.

ISCOTlSm Lll'Wsof J cap. 11150In New Ham hi /849 chap.Ip. '

of age. ps re a persollWasalso .161RepoN t h requlred to be twemy-one years

C OtePToced'oTIStitllti(m of the Stilt e. m~s and Debates 0 .

162/71 re McD e of Mtchlgll11 (1850) 88 f t{;e ConventIon to Revi;e tbeheld that the p~"""onal

fd'100 Indiana4VI 4~8 ',395,477, 8u.. u~.lce 0 law b ,., ~ 1918) t:.. N EunqualifiedCOll5titutioI' y. any VOterof d' l"'t .• 161, the court

regul:ltioru;for the adnn,a,right, Sll1cethe courtsgoo moral character is not anBurrlS'Stlltlltes IUr 4 ~10? to practice.See ActsmatY make reasonablerules and• ;..... ..-. -]vu5: The Su 0 /9Jl chap ".Jur......,letlonto :l.dmitan pteme Coun of h' . "'t, par. r, p. 150;rules and regulatio ~rneys to practice in.II t ISstate shaUhave exdusi\'e

. ns a.s l[ may , '"U courts of thIndianaadopted Certll' 1 prescribe."In July e state under ruchIII ru es regulating the admi...s~93I,the Supreme Court of

IOnto the practice of law.'58

BarOrganizations and Their Decline

voter, irrespective of his professional qualifications or rrai?ing, tobe admitted to the practice of law, provided he was a resident ofthe state and a person of good moral character.!" In brief, s~mestates simply contended that citizenship and the absence of a cnm-inal record bestowed an inchoate right to practice law.

In 1834, Frederick Robinson, a popular writer, spoke outpublicly against the "secret trades union of the lawyers, called thebar, that has always regulated the price of their ?wn labor ~ndby the strictest concert contrived to limit competition by deny~gto everyone the right of working in their trade, who will not IIIevery respect comply with the rules of the bar."154. I~1838 th~Southern Literary Messenger, referring to bar assoctanons or baorganizations, stated: "They are wrong in principle, betray co~-petition, delay professional freedom, degrade the Bar."l55 Ro~m-son also attacked repeatedly the "combinations of lawyers," ~la~-ing they were "better organized and more strict and tyranmcal mthe enforcement of their rules than even masonry itself." If theorganized bar should be investigated, Robinson alleged, ".[w]~shalldiscover that by means of the regularly organized combmatI~n ~flawyers throughout the land the whole government of the nation IS

in their hands "1~6When in 1836 the Suffolk County Bar in Mas~achl1se~ts dis-

banded on its own accord, the reason given for this drastI~ stepwas "the Revised Statutes" which made "essential changes 111 theadmission to the bar."157 More specifically, chapter 88, section 19of the Massachusetts Revised Statutes of 1836 provided that "[a]nycitizen of the Commonwealth, of the age of twenty-one, and ofgood moral character, who shall have devoted three years to thestudy of law, in the office of some attorney, within this state, shall,

J53lndianll Constitution of 18S1 art 7, sec. 21. Under the :l.uthoriryof i~reTodd, z08Tndiana168(1934),193N,E. 865, this section of the TndianaConstl~U-tionwasahrogatcdby virtue of its submissionto the voters at the gencrale!ectlonof November, 1932.

154Robinson,Program for Ltlbor 329 (1834)·155 Quoted inWickser, "BarAssociation,"loco cit., 393·156Robinson PTO<M'tI1ll for LabOT 319""30(1834). Robinson's attacks upon

, 6' . • '·1 thosethe otg:l.niz.edbar and the legal profeSSion10 general are very smllar tolaunchedby BenjaminAustin,aliasHonesrus, lindWilliam Duane, See Chap[crI,above,

157Record~Book of the Fraternity of the Suffolk BaT I,

{(

'59

THE RISE 0 F THE LEon appli . GAL PROFESSIONcanon to rladmitted ie SUpreme co

W I hto practice as an urt, or court of common pleas be

ea t "s . attorn . .,....,qUaliE~a . ecnon 20 provided- :r ill any court of this Common-have s tl?nS, required in the ;e An,Y person, having the other

me d~died the term tbe p ceedmgsecrion, bur who shallnor

n ano f rem pre ib dscpr no any attorney irhi ~cn e , may. on the recom-erne cou WIt 1Il this C ..missi rr, Or COUrt of ommonwealth, petition the

...,100 as common I .assi an attorney in s id p cas, to be examined for ad-gn Some . 31 COUrt hth [true and pIa f 5, W eecupan the court shall

ereupon be ee-: ce or th "shall b ~ S3tlsfied with hi e .exammatlon, and if they shallyears "cSUdolltted, in like m s acquucments and qualifications, headmi~t d eetion 24 provide/~~r as if he had studied three fullof anye han attorney Or cou" nny person, who shall have been

ot erst nse or of th hi h " ""Wards b ate, of which h e 19 est judicial courtecorne su , e Was . h bitice here an mhabitant of his an m a iranr, and shall after-

and hi ,upon satisfactory "dt state, may be admitted to prac-IS profess' eVI enc f hinoted, radi all ronal qUalificatio ,; 0 ISgood moral character,

office of IC y altered the exi ?s. These provisions, it will bea awyer' stIng Jaw' hrexaminatio . entitled the di . r ee years' study in the

n, eIther . can idare t b " "prerne Judi' I rn the Con.... foe admitted, withoutb

CIa Con 10 .......~0 Comm pto e admitted fi ~. e old poU on leas or in the Su-there with d;.. . rs~ In the Coun f Ccy of requiring every lawver. h ....tmctIo f 0 OmIn P "'IS ed. If an ap r n or a fixed . On leas and to practicestudy of law hP team Was unwillipenod of years was simply abol-I h ' ecould ngtadIe s ?uld pass th' ap~ly to the eo f eVOte three years to thepractice of law . IS ~xamlllation su un or an examination and ifpr C In elthe th Ccessfull b 'eme . OUIt witho

ur e COUrt of y, e admitted to the

p~ofessl0n. 158 In this t ev~r having had aCommon Pleas or rhe Su-hIstory of America fashIOn it was assu oy fonnal tcaimn for theprofession but as that the bar was to bmedfor rhe first ti~e in rheH . a SOrt of' e regard denceltcouldbe . pnvate occu . e notasaleamedIG8 ,,_ • . malO tamed that d patlOn or "business "11>9

~e arley A Unng th '57-58 (1907). ,ttomeY$ and Tb . eso-called "middle

1G1I Th S err Admits;a] e upreme} d' . on to the Bpe cd all previous ruJ u lCIa] Conn of AI ar Of Manachuseus

repeal took efT cs of COu assachUSettsalso th " eet on Oerobe n relating to h ' ar rhe McI e dlStlllctiOIl bec:w r" 18)6. 24 Pick r. e admissioll f arch tcnn, re-

IUsem. cell attorneys and erlllg (Mass) 0 attomeys. ThisCOunselors w~ :~~18)6). In 1836

hed in fIIassa~

160


~eriod," not only was the formation of any association or profes-slOna~organization effectively discouraged, but the early "barmeetings" or "bar associations" were gradually extinguished, withthe. notable exception of the Law Association of Philadelphia.Wickser summarizes this general situation well when he states:

Itwill be observed, therefore, that some of the significant char-acteristics of the period herween the Revolutionary and CivilWars were: (I) the development of an individualistic bar in anindivi?ualistic community; (2) unrelated and fitfull attempts toorgamze, often unsuccessful, but generally all-inclusive in theory;(3) practically no evidence of selective associations, at least intheir purposive aspects; and (4) some claim to control standardsof e~ucation, admission, and discipline, which melted away beforea philosophy of democracy, pure and sovereign. The ablest mem-bers of the profession still knew each other's language, and, as agrou~, talked loudly and definitely about the major political ...questions before the nation-for which, as a class, they were hand-somely paid-but neither they nor the bar as a whole made seriousattempts to change the philosophy of the day, nor to object to itsapplication to their own body, no matter what results mightensue.160

By 1830 the system of organized local bars had been establishedonly in a relatively few states. Obviously, in the face of growingpopular antagonism, adverse legislation, and the general trendtoward deprofessionalization which marked the Jacksonian era,these "bar associations" or "bar meetings" could not spread or evenmaintain themselves. In New England they rapidly declined andSoon passed out of existence. The organized bars of Mississippi(r824) and Arkansas (1837) never amounted to very much, andthe "bar association" of New York had already disbanded beforethe Revolution. An attempt by the lawyers in the city of NewYork in 1835 to form a "Legal Alliance" proved to be abortive.

161

Only the lawyers of Philadelphia, through the Law Academy andthe Associated Members of the Bar of Philadelphia Practicing inthe Supreme Court of Pennsylvania, somehow managed to pre-serve elements of the wholesome notion of an organized bar.

160Wickser, "Bar Associations.," loco cit., 390, 394--95·161 {bid., 394'"

THE RISE OF THEHence the LEGAL PROFESSIONof the o present-day Philade1 hi . .be the Id Law Association of $h' a Bar ~SSOClat10n, the successor

oldest continuous b il~d~lphla, may rightly claimto~bout the middle f har association in the United Stares."

especIaU MOt e eIght hin d Y assachUsetts and N eent century in some colonies,lo~al ~!~Ctotheir responsibiliti:;vf York, t?e. courts began delegar-Mass h DUilty bar associati 0 or admIssIon to practice to thewerea~ usett~,New Hamps~~~ n the eve of the Revolution,inmay b nnly m COntrol of ad .' ~nd RhOde Island, the local barslecns! t~explained by the fact ill,155100. This unusual phenomenon

b' a Ion each ,t tar owing t I b f soeci Iright to re' COUrt possessed the 0 t ie a ~ence 0 spewsible f gulate the details f power to admit as weIl asthe

Or them . a such admi , . ,OWn In' to dispense W·th ISSlOns.ThIS made It pos-already adt:ur:e they acquiesc~d .an~, formal regulations of theirof New Emitted into the prof .m rules" established by thoseTh ngland . ession In thiis COotr I m particular a ', 15 manner the local barscouns sao a was so nearly co ~quIred Control over admissions.it Wasexe n ~PdP~aredto be the ;rp.e.te that the bar rather than the

. rCISe 10 S d . ecisrve aurh . I .ConVIction 0 rastlc and th onrv n some Instancesf among th orough f hio a selfishrno e general po I a as ron as to create the

bar nopoly 1\1 pu ace that' t,and its inA . aSSachusetts' . I was the instrumentedn-e-. uence W f In parn I hUCatlOnwh' h . as elt in rh . cu ar ad a very strongP f' IC Itex equalIty f hto esslon. In th pected from 0 t e prelegal and legalto the ]egislature~sefCijOJooieswhic6~udnglm~n desiring to enter theortoe Sa Uret a essmflu 'Ib .mpower the co a provide for . entia ars, owmgments, cspeciaUy urts to set up Such certam rules of admission~reparatory Studi;o s~rict requireme rules, no uniform require~:~e after theRev~h~~lsted. Thus sho~:~ o~ uniform periods of

lit. er the various "b 100, at least in Y e[ore, and for somecglslat ar org' Some pa furcs-often d anlzations" d rts 0 the country

COli lie to tI . an "b 'f 'htsestablished rliJes I:. !e Influence of th ar meetings" or theor t e adm' . IIXmg n' . e organi d b. tSSlOn to . 1lnllllum d ze at-or the

Jtsclf dcrcrm.i d .p,raCtlce.At th e Ucational .miss' oe muurnun e same tim reqUIrements

IOn ro the StUdyof I 1 educational re .e, the organized barproper authorities c aw~and also made qllIrerncnts for the ad-5etts f' oncerrung d' recomm d, or Instance th a mission to . en ations to the

JI1:I p ,e recOinm d' praCtice JOund, The Lir~ en atlOn of . n Massadm_

)'eT2ojff. (1953). an applicant by the

'6,


localbar was all that was demanded by the courts, but the bardetermined for itself the grounds upon which it would recom-mend.v"

In sum, therefore, although local procedures often variedg:eatly, shortly before the Revolution a relatively significa~t be-gmninghad been made through the creation of some ~eanmgfulstandardsfor the admission to the study of law, and part1c~arly tothepractice of law. The Suffolk bar in Massachusetts, for mstance,provided in 177 I that prior to his admission to legal train~ng anycandidate had to have a college education, a provision which wassubsequently adopted by other Massachusetts county bars.?" In1768 the Essex bar adopted a rule, likewise followed by otherMassachusetts bar organizations, that no person ought to be ~d-mitred as an attorney in the Inferior Court unless he had studiedlaw in the office of some lawyer for at least three years; ~or as anattorney in the Superior Court unless he had been pracncmg as anattorney in the Inferior Court for at least two years; nor as abarrister unless he had been practicing as an attorney. I? the Su-perior Court for at least two years.165 Hence, the rmrumum re-quirement for admission to practice as a barrister was seven yearsin Massachusects.>" By a rule of court of 1810, t~is requirementwas enforced until 1836. Because Massachusetts, like some of .theother Northeastern jurisdictions, recogniz~d a grade~ professIo~,the requirements for admission were partIcularly stnn.gent. ThiSMassachusetts policy of strict but sensible cont.c0l m~aculouslysurvived the Revolution and the trying years unmediately fol-lowing it.

The other New England states gene~ally followed r~e. ~x-ample set by Massachusetts. New Hamp.shlre, through th~ ffiltla-

tive of an organized bar, had certain reqUirements concerrung pre-legal training. College graduates were to study at least three yearsin the office of a practitioner; nongraduates, five. In. order to beadmitted to the Superior Court, tWO years of practice as an at-

163For detailS see RecoTd~Book of the Suffolk Bar, loc. cit .• 147~79'1M In 1784 a ~Ie was made by the Suffolk Bar to ~e~uire of any nongraduate

an examination by a committee of the bar prior to admiSSIon as a law student. See

textaoove.165See also 1 Mass. (Tyng) 71 (1806),166 1 Ad\lffiS, W oTks of Jobn Adams 197 (185°)'

,6)

THE RISE OF Ttornep 0 th HE LEGAL PROFESSION

10 elo. \Ver COurts w .~equlfements obtained in V ere prescnbed.Hl1 Essenriaiy rhesnefished these require e~onr. Here, too, the localbaressb-statute in 1787 F menrs which were officially recognizedbyY £ . rom 1826 r 8ears Or College dOl 43 a rule of court required threewh gra uates fi iat more than rhr ,ve years or nongraduares, andsome-education. For ad . e~ years for those who had a partial colleueri mISSIOn to h S Dce as an atrorney a d f t e upreme Court two yearsofprac-years were requir~d nCoOr ad~ission as solicitor in Chancerythreethat any candidate f~ dnn~c~leut168and Rhode Island stipulated~ent of the bar. Thi r a mISSIon to practice had to have thecon-1£ a II IS consent w . hh 0co ege gradllate h d as WIt e1d unless the candj(lare.k~rs of legal trainin~. ;hes~o yea:s, .and if a nongraduate, threeir ed by the organized bar pres.crtptlons likewise had been estab-earn 182 I to 1837 re uired' Mame, by an act of the legislarure,

of ars had to be spent id th seven years of study, of which threea a counselor at law e Study of Jaw under the dose supervision

New York re :which c Id b qurred a period fof ra ~u e spent in colle e ,,0 s~ven years' study, four of

hP ctIce as an attorn g or classical studies "169 Four years

tree year ey, subse 1 0 0Ne ] s,gavetheright ip quemy (in 1804) modified tow ersey thr ' so facto b

grad ee years of legal . ,to ecome a counseJorYQInuates and f stUdIe .had to' OUrfor nongr d s Were prescnbed for college

pass an ex' a Uates In ddo0 °dOUt of th ammation befo . a Ibon, the candl atee tweJv' re a Com .law stud in e selJeants. Penns 1 ~llIttee composed of three

Commo ypJ a Jaw office17land Y VallIarequired four years ofn eas' 0 h one year' '. frice topp db' r tree years of 1 s praCtIce In the Court 0, e yan' awstlldy d

the candidate h d exanunation cond d an h.vo years of prac-years of law a passed his twenty fioctbe. by rw-o lawyers. But if

stUdy - rsr .trthd'"' B ' two years of p . ay, the rule was twO

etweell 18 raCtIce d .by a rule of Coun 33 and 18j8 the ~me' ,an an examinatlon.

168Th' . perIods of pte .'dOplOd b 15rule Was first CSt bli h paratiOIl Were required

yarule f has edby169See 0 t e SUpreme Co custom set u bl70 I New York (Col un. P Y the bar. Later it was

See 2 New y email's Cases)the ~ar ill New YOrk,?rk (Cailles' Reports P-j3 (1797).pncCJce in the Chance' Col6Yale Law JOllrn~1"'8./'804); Smicb "Ad ..

l7I Th' . ry un had to 51.,... (1907) A' mlSSIOIltoapprentiCCShi;,~~ of le~ study in ~a:::s~ciaJ cxaminatiOIl~~~~; wishing [0

In f7881t was ren ,,0 ce Was originall I., 5Il'\:.atned clerkship." y called ".regular

,64

,.~=::::=----


Since colonial days Delaware had insisted on three years of legalstudy; and Maryland, which also required three y~ars' stud~ u~derthe supervision of a lawyer or judge (at least until 1832), insistedon an examination of the candidate by two members of the bar.Virginia, on the other hand, demanded only one year of legalstudy (and this only after the Revolution) ,172 as well as an e~am-inaticn by members of the bar. In South Carolina the candidatemerely had to pass an examination in order to be admitted to prac-tice.But if he had clerked in a law office for at least four years,':"he wasexempted from submitting to this examination. Georgia: byan act of the legislature, insisted on five years of legal preparat~on;~hile Louisiana, by a rule of court from 1813 to 1819, a~d Mich-igan, by an act of the legislature from 1827 to 1846, required threeyears.

During the 1830's, and in some instances even earlier, statelegislaturesbegan their relentless attack upon the legal profession asa profession or "class." Some states aimed directly and openly atnothing less than depriving the bar of its professional character bytrying simply to suppress it as a whole. Thus, Elbridge G. Gale, adelegate to the Michigan Constitutional Convention of 1850, pro-posed: "Any man may give either medicine or gospel. ... I wantthe lawyers to stand on the same platform."174 Practically each newState down to the time of the Civil War at one time or anotherthreatened to "make every man his own lawyer" by an act of thelegislature or by a decree of the court. In some instances proposalsor measures were introduced which, at least outwardly, appearedto be less drastic, although in their ultimate practical effects theywere equally harmful and destructive to the legal profession: theabolition or severe curtailment of existing educational and profes-sional requirements for the practice of law.Hr

' The guiding idea172Patrick Henry was admitted to practice in 1760 after three weeks of pri-

vate srndy. See Tylcr, Patrick Henry nff. (18cjl).17/1College graduates had to clerk only thtee years.. .174 Report of PToceedingr ami Debater of the COTwentwn to ReVlre the

Conrtiturion of the State of Micl)igan (1850) 812.1751ndiana, for instance, proposed the seemingly hannless prohibition of

using "technical terms in Latin or in other than the En.glish language f?~all legis-lative a=." 2 RepoNs of the Debater of the ConventIOn for the RevlIIon of theConstitution of the State of Indiana (1850) 1128. See 31so ibid., IU9ff., "39.TIf)6ff. But in effect this WIlSa deliberate effort to reduce the educational and pro-

THE RISE OF THof the . . E LEGAL PROFESSION

time was simplv that ewas asgood as every oth very man, or at least every citizen,gates to self-ad er, and that every one should find openthef hi vancement succes do IS personal choi '. 5, an economic gain in any field

P dGlee This "phil h"resse by the Indi S· Dsap y was poignantly ex-

"Wh lana uprcme C Jatever the obiecri OUf[ as ate as 1893 when it held:J hi jecnons of th '.a aw igher in thi e common law of England there15

lib . IS COuntry and b 'ernes of Arne . ..' etrer suited to the rights and. . .ncan CItizens h Icitizen the natur J . h ' t at aw which accords to every

a ng t to gai J. .esty, and industry in ,I n a ivelihood by intelligence bon-vo . le arts the . 'CatlOns."176M . ' SCIences the professions or otherA' onvared by such .' ,.rnencan democrac nonons, early nineteenth-centuryVIOU I " Y managed to b fore i .s y eXIstmgand a d carry e ore It almost all pre-or reg . ccepte stand d f fessi .turements for ad . . ar s a pro essional educatIon

A mISSIonto th I I fround the year 18 e ega pro ession.____ 00, Out of nin , . . 17'. e een states or rernrortes 'fessiorul qualif .b il' cations of h Ie ulninating. "F t e awyer. Som .technical re '. rom the use of verb' e ~uotatlons from these debates might

rms In Latin lage, with whi h he Iaw i deVery enactme h and other In c t e aw lSencumbered, anmade use of hn~t

hat is made by the Lngu,ages, it requires a lawyer to interpret

f w IC will egis ature I ora the peace and . PUt.~he meaning of th .... w~n~ that kind of languageman Can internr trhlvate Citizens.... Th ,ose laws WIthin the reach of justicesIllS" -r e t em for hi e aws ought b .. '" r Want Ian lmself, without th . to e so plam that everycan Understand Lk guage employed th e aid of a law dictionary." Ibid~fessl f . now th t . at men whlon, or it will Steal a I' a It wiU be resisted b 0 are not versed in the JaW~unry sears. But we little of the trade of th y the members of the legal pro-

~~ all know that the1ave been long enough ose lawyers who hang around the~aJlties ... those for .gentlemen of the bar agoverned by lawyers." Ibid., li3°'f' . these jawbreakcrscign temlS which are t~e supponed by these very techni·

Of the country from u darcpUt into our Statut e very idioms of the bar." Ibid.o the hu n cnta.ndi.L es to preve h hI . man mind, that \ ng u,em .... [I} . fit t c onest yeomanry

d~id.,IljI. " .•• I see n ve should have ou~ I t IS r~asonable in every directionlSpe d . 0 good • aws wntt .m ~e With, and the En I' hrcason Why these L . en In our own language."Oil aw practice, is loudl g IS used in their I atm law phrases could not be

:~ct~er you will let eve~ ::lIed for." Ibid.,P,~~~'.:isim~Jjfication of our com-wh Ct er you will write Your ~n Set up for himself ~at 15 the simple question,th;~e not c~ucatcd in /..4t;1/ .::,;s, or a ponion of :~e understand the laws, or

~ make It the business f Norwan Frl!7lcb f m so as to prevent thoseCJl:prCSSlons."Ibid. 0 a cenain class of rom understanding them and

"'I .. mentoe"'p""dh '.n re Pctltlon f Le n t ese my:netlOUS177The Non), 0 ach. r34 Indiana 66, ""

n west Terri ' ........(JS9)e}~ and two additiOnal tory required fou 3 ; H N.E. 641f. (1893)'

(jucntly thc'ad years of practic r years of Ie 1pen of legal study f e as an attorn ga study for attar·or attorneys Was redu:!d for counselors. Subse-to three y__

166 ~~~.


fifteeninsistedupon definite and often detailed standards of admis-sion,including prescribed minimum periods of preparation: Massa-chusetts,New Hampshire, Vermont, Connecticut, Rhode Island,New York, New Jersey, Pennsylvania, Delaware, M.aryland,SouthCarolina, Georgia, Tennessee, the Northwest Territory, andthe Indiana Territory.'?" The four jurisdictions where no suchrequirements existed at that time were Virginia, North Carolina,Kentucky, and the District of Columbia. After the year 1800 theserequirements were re-established in Vermont (1817) and intro-duced, though in a weakened form, in Missouri (1807),179 NorthCarolina (1819), Ohio (1819), and Michigan (1827)' They werealsoapplied in Louisiana (18 I3), Mississippi, Arkansas, \Visconsin,and Iowa, only to be promptly abolished. By the year 1840 onlyeleven out of the thirty jurisdictions retained any provisions con-cerning minimum periods of legal study preparatory to admissionto the practice of law. Aside from the states already mentioned,these provisions were abolished in the old Northwest Territory(Indiana Territory and Ohio) in 1801 and 1802, Georgia in 1

8°7,

Tennessee in 18°9, South Carolina in 1812, Massachusetts in 1836,

Maine in 1837, and New Hampshire in 1838. They were greatlyreduced in New Jersey in 1817 and Maryland in 1832.

180To make

matters worse, even in those states where some semblance of re-quirements were still observed, these requirements were not stric~lyenforced or competently administered. In Massachusetts, for m-st:nce, the act of 1836181 provided that any perso~ could ~e ad-mltted to practice in the following manner: Applicants wlth orwithout previous training might take their chances with the cou~ts.If,however, they were of good moral character, and had studiedlaw for three years in an attorney's office, then the courts ,,~ereobliged to admit them.182 How loosely the termS "legal apprenuce-

li8 Vermont, it will be noted, inuoduced this requirement in 1787, but

soon abolished it.11\1Missouri abolished these requirements in 1830. .180 Reed, "Training for the Public Profession of the Law," 15 Bul/

etmof

tbe Carnegie Foundati01l for tbe Advancement of Teacb;ng 85££' (1921).

181 Revised StatVles (Massachusetts) of 1836, chap. S8. sees. ItrOO· Thecourt rule of 1806, 2 Mass. (Tyng) 72-16 (1806), had already been modified by a

counrule of 1810. 6 Mass. (Tyng) 382-85 (1810).182RC1:d,"Training for the Law," loco cit., 87·

THE RISE OF Tshi "" I HE LEGAL PROFESSION

p, c erkship," Or "le al ."from the fact that in Oh ¥ ;ru~leswere applied may begatheredproduce a certifica . 10, or Instance, the applicant had only to

te signed band attentively studied law" y an att~rney ~hathe had "regularlybeen under this . . Hence, Jus studies need not even haveJ Particular attor 'dir "awyers only too f . ney s urrecnon. Good-natured

"h' 0 ten certified" J d " "Wit OUt mquiring int h f regu ar an attennve study

1 or e acts18S

n colonial Vir . . . .practice before the ;m~a a candIdate wishing to be admittedtobefore a pennanent 19 cr. c.OUrts had to undergo an examinationCOUrt and composed e~ammmg board appointed by the Genera}practicing before it.l~~~~~bers of the General Court of lawyersRevolution, with the di IS ~ethod substantially survived thefore all COurts was de• ification that admission to practice be-h G maesubJ"ett e eneral Courr al c to such an examination and that

G onewastoh Id h 'eneral Courr often had . 0 t e examination. lSI>Sincethepersonnel required to neIther the time nor the skills nor theeffici I conduct th " dcienr y, these exam" ese exammanons properly anI N matlons as 1n ew England at I .us a ru e, were wholly inadequate."th' ,east as long h "be main control emph . as tear meetings" exercisedI' ,aslSwaspJ dp erron of the prescr,"bed . ace upon the successful com-

. di . period f IIII ividual preceptor had t b ? egal studies. Hence only thestudent; and his recomme~d e ~atls.fiedwith the arcainmenrs of the~orted by the whole bar watton to the COUrt, especially if sup-nee 187 S h ,as tantamo . .. omew at later th . unr to admISSIOnto prac-nece.ssary prerequisite. T~' ,u~gment of the whole bar became aspecIal" " is, III turn led hexammmg committees" .' to t e appointment ofb(~r together with their recom WhdlCh.reported back to the wholem 1795) "N H men atlOns Th" ", In ew ampshire (. . us, 10 ConnectJcut

m 1805) d' .1S3Pound, The Law er ,an III Massachusetts (101S( S . Y 129-30 (1953).

ee 6 Henlng, StatUtes at Lamoral character" had to be roy rge ... of Virginia

18l>This "V' .. P enbyacernficateissu db l40ff. (1819). "GoodIfglnla syStem" bey a coun"

South but also throughout the W ecarne influential not 1 COUrt.'" Th b ld . estern terri[Qries on Y throughout the

e same e true In th ."Virginia System." c states which were unde .

187See 2 Ad lV r the Influence of theams, ork; of Joh

tells that Mr. Gridley of the Suffolk ~ A~ll11lS49ft". (1850) whof the Bar ... for the oath [of at recommended h: e~e john Adams

attorney]." un, WIth the consent

,68


1806),188examining committees were set up by the bar (or by thecourts) in every county. These committees frequently determinednot only whether a person had acquired a sufficient knowledge ofthe law and whether he had completed the required apprenticeshipin a law office, but also whether he had received an adequate pre-legaleducation to qualify for admission as an apprentice or clerkin a law office. In some instances it also determined the "moralqualifications" of the candidate.

When, during the early part of the nineteenth century, t?eNew England legislatures gradually ousted the local bar associa-tions from their control over the profession, the principle of hold-ing examinations to determine the qualifications of candidatesmanaged to survive. But from then on these examinations were tobe conducted by the court icself.!" or by a committee of la-wyersappointed exclusively by the courr.?" In some instances these weread hoc appointments. New Jersey between 1752 and 1767,~1l1~ndSouth Carolina between 1785 and 1796, also had an exammanonsystem as an alternative to the requirement of several years of ap-prenticeship.t'" Gradually, however, all candidates were com-pelled to satisfy both of these requirements. Under the pressureof the new egalitarian ideas, the apprenticeship requirements we~egradually abandoned, leaving only the examination system ill

force. These examinations, whether conducted by the [cdgcs'" orby a committee of lawyers appointed by the courts,'?' h~d onecommon significant feature: they were no longer supervIsed or

188See note I I, Chapter III, above. .1811In Vermont after 1826, in Massachusetts after 1836, and In New Hamp-

shire after 1838.190In Rhode Island after 1857. The Supreme Court of Massachusetts ap-

pointed special examination committees for each county berwe~n 1806 and I~IO.

Vermont (from 1817to 1826) and Maine (from 1837 to 1843) dId the same thing.After 1843 these committees wete appoimed in Ve~om by.the COU?ty courtS.In Connecticut, at some earlier date, the local courtS m certalli COUntiesalso ap-pointed examination committees.

191The examination was conducted by a "boud" composed of some of the

serjeants.1112Massachusetts inuoduced this alternative in 1836.193In Virginia, Maryland, South Carolina (until 1796), Georgia, New

York (until 1830), and New Jersey (until 180,).1\1( In New Jersey (after 180,), Pennsylvania, Delaware, and New York

(after dJ30). Concerning Massachusetts, see note 12, O1apter Ill, above.

I

~._._-


conducted b th fessiining rna hi y e pro esston Itself hut by the "state." The exam-emery was sub . Uthe state with th stantm y organized and controlledby

.' e result that th fessioni f .posItion to d '. epro ession itsel was no longemaetermme us 0 bershi .. dapplying rhr h i wn mem ership by establishingan

aug Its Own ill hi h ..and of restin r ac lOery t e standards of admissionopinion of rig apPflCa~ts as to whether they fully met, in the

le pro eSSlon rh . . .'menrs.tee Eve h ,esc muumum professional reqU1re-ow creche " Ilawyers appointed b exammation was held by a committee 0

quenrlo- the r 1 fY the court, such appointments were fre-h

esutoam I·appened to b . ost casua designation of lawyers whoid e present 10 cou t I . ."aSI e from bei h r at t te nme. The "appomtees,

Ing w oIl d"rule discharged rh . d >: ~Interested in this kind of work, as aerr unes In dThe causes f h .amost esultory manner.!"

The departure of or t e decline of an organized bar were many.numerous p .

195 Se' rorrunenr lawyers during the Revo-e, for msta Wnote, 3Z Ch nee, oldman L' .

Bar in N apter I, above, and the ' Qwyer.Lmcoln In-54 (1936), quoted 10196~':" York," ,6 Yale Law J correspondmg text; Smith, "Admission to the

not the d In tho~e long past days ~~r:~.i~4ff.. ('906).them ... ~Caffa,rs .they arc now. La mmatlons ~or admission to the barw~ve~ pa-: 1 ]Omtnlttees (who p' .WY, ers were In demand and we 'created

'J «leu ar_if h Laetlca Iy ad . d .afternoon t e couns could~, d' IUltte candidates then) were nOIOUt on th' ~ an It the' 'dllicense. . Th e eu:cuit, an old J' committee could. During an I e

victim. vi' _ e Coun appointed 'h UStlce of the Peace Jawy" ,pplied for ae assembl d . e USual .appointed M e m the app"~ " committee to take charge of the

. aster of C n s room wh 'p ,mlttee Af, h etemonies G d ' ere any BO)'d \ViIS at once. ert eusul . ,ran Inq··two hours 'Po ' a preltminarics [, . UISJtor and Chairman of the Corn-

, ny called 0 WIt sam h .ceeded aJong ab th us from refreshm' e eavy unbibingJ, lasting someAnswer; Law bo~~ c fOllOWing lines' Qent t~labor ... and the 'inquiry' pro-I did not expect t bQ. Then, sir, what 'is Iues;:'0n: What books have you readrwanting a license~OTt made fun of. If I d~:' A. (Confidentially) Now, 'pony,'cant's l:Juestion b~t h le committee ruled th,l~ ,npotknow What law is, would I be'p, ,estood L any' I liony, you ought to kn mute and repeated h .... s lOuld answer the app -

llf you are going" .x o~ that any onc Can ~ t e question .... A. (Indignantly)"he c' ... aJnlne m .•nswer such .ommlttce rcpon d f e. Stop thiS trifI" easy questIOns as that.

Circuits in Southwcsr :" avor,ably [and] hc w,:ngd a~d ask me something hard.

cd 8-) " ISSQUrl " Th ~a mltted" Ma .• I Y".' See also ibid., .,,' ~ Bf?7lch {(lid Bar '. cMee. "Riding theh.lawyers license] over t::~h'" HIS Honor turncd:-' Mlss~UTi 73-74 (Stewart1m through the usuaJ cate h.e tender mercies of th un (scII., the applicant for

~e.p~oceeded fUrther as f~lIlsm on 'Old Pike's' tabl: u:u~1 committee, who putfhallltiff? A. A petition some:ws; Q. \-Vhat is the firs~ hquid measure, and ...

e first pleading on the a.n: 0 mes called a complaint pleading on pan of tlleHe -was admitted Witho~ d' f the. defendant? A. An or ~ecl.aration. Q. What is

a LSSCntlngVOte." appliClmon for continuance.

'7°

Bar Organizations and Tbeir Decline

lution,and the genuine disfavor in which the bar was held duringthe economically difficult times following the Revolution, grad-uallybegan to undermine the prestige and influence of t~e la":'Yers~ well as of local bar organizations. During the 1830's rhis ammos-Ity against the lawyer and against an organized bar gathered re-newed momentum. A new social creed, which pound has wellsummarized, made itself felt far and wide: "[F]aith in a naturalri.ghtof every man to pursue any [lawful] calling. of hi;- ~hoice,distrust of specialization and requirements of special rrammg forparticular callings, and fear that a recognition of professions mightcr~atea privileged class not open equally to all citizens."19~It go~\Vlt~out saying that all this was the outgrowth of certain b~SlCSOCialand political ideas prevailing during the so-called Jacksoman

~rawhich, as a pronounced "frontier democracy," aimed at noth-mg less than a complete democratization and, hence, deprofes-sionalization of the bar. This era and its popular ideals in a greatmeasure retarded and, in many instances, even hindered the de-~elopment of a strong legal profession, as a profession, by foster-mg a suspicious opposition to, and distrust of, an educat~~ bar a?d,for that matter, of any "elite" based on special trammg, hIghachievement, and impeccable deportment. The unfavorable popu-~arstereotype of the lawyer was reflected, amusingly for us today,III the stock figure of the "lawyer" in nineteenth-century melo-drama-the villainous forecloser of the poor widow's mortgageand the lecherous pursuer of virtuous maidens, .Itmust also be borne inmind that the notion of an orgamzed

bar had never been accepted by all of the original thirteen states,and certainly was not accepted in most instances by the new statesthat were subsequently admitted to the Union. Neither SouthCarolina nor Virginia, twO very important states, ever had a localOr state bar, The explanation for this phenomenon is simply thaton the eve of the Revolution, in both of these states, the leadingmembers of the profession were primarily barristers trained in t~eEnglish Inns of Court who had been called to the bar by theU'respective Inns.lIIB These barristers considered themselves mem-

197Pound, The Lawyer 136 (1953)·108 Prior to the Revolution ;lny lawyer who had been "called to the bar"

of any English Inn of Coun was automatica.lIy l:Jualified to practice in any of the

colonies.,7'

THE RISE OF THE LEG.'\L PROFESSION

hers not of any 10 II'former Inn of Co ca, co onial, or state bar but of the bar of theirto establish " urt. They were averse and perhaps too haughtyhad b or JOI? a local bar association consisting of lawyerswho

not een tram d i E Ivulsion . 1 e 10 ng and. It was only the widely felt re-a' hagamst ow professional standards and a like revulsiongainsr t e general port" I . '

P Ii. 1 lea corruptIon especially in state andlocal

o tICS-a corrupt" hi h . 'result f Ion w c 15frequently the concomitant or theo an unorganized 0 bar-cwhi fnearly half r corrupt ar-swhich, after the lapse0

organized ba Cl~~tury,led to the revival of the idea of a stronglyar,

199Wicks "Ber, ar Associations,"loco cit.; 39'6.

'7'

IVTRAINING FOR THE PRACTICE OF LAW

IT HAS ALREADY BEEN POINTED OUT that one of the chief con-cerns of any organized and skilled profession is, and nearly alwayshas been, the supervision and control of the training and educa-tion preparatory to admission to the practice of the profession.In colonial America any person desiring to prepare himself for~hepractice of law had four major avenues open to him, not count-mg attendance at one of the few colleges then in existence. Hemight, by his own efforts and through self-directed reading andstudy, acquire whatever scraps of legal information were avail-able in books, statutes, or reportS; he could work in the clerk'soffice of some court of record; he could serve as an apprentice orclerk in the law office of a reputable lawyer, preferably one witha law library; or he could enter one of the four Inns of Court inLondon and receive there the "call to the bar."! After the Revolu-tion, and for a long time to come, the chief method of legal educa-tion was the apprenticeship served in the office of a lawyer,although there were still some isolated instances of self-directed

1 Chrousr, "The Legal profession in Colonial Amccica," IDe. cit., Pan I, 51,

59fT. (1957)·

'73

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