DURING the greater part of the seventeenth century, lawyers did not constitute a class or profession in the American colonies. In New England, their presence in the community, not to mention their services, was deemed undesirable, if not dangerous. To be sure, among the Puritan leaders, at least Winthrop, Bellingham, Humphrey, and perhaps Pelham and Bradstreet, had received a legal training. Frequently, in their time, gentlemen would reside at the Inns of Court in order to prepare themselves for the public duties appertaining to a county magistracy or a seat in Parliament. In the case of Winthrop and his associates, their knowledge of the law, being duly subordinated to a knowledge of the Word of God, was found very useful in organizing and conducting the new government. But the law as a profession they had not followed with much zeal in England, and were not willing to tolerate in their new home. Even the body of the law they introduced only so far as it suited their ulterior purposes. They knew too well the condition of the law of England and the circumstances of its practice at the beginning of the seventeenth century. Although the feudal spirit was extinct, many of its legal embodiments — notably military tenures — were not yet abolished. So many obsolete and useless statutes remained unrepealed that it was difficult to determine the law with certainty and perspicuity. Its digest and compilation was not only favored by leading jurists, like Sir Edward Coke, Lord Bacon, and Sir Matthew Hale, but also demanded by an outraged and exasperated people. At the same time, the law was to all but a few practically a closed book. Only the conduct of judicial proceedings was in English. They were reported in the French of the Norman Conquest, and recorded in the Latin of the monasteries.
Moreover, the Puritans had suffered from the law as an instrument of priestly and kingly oppression, so that to them the lawyers seemed to be leagued with the clergy not only in perpetuating abuses in the courts and in the Church, but especially in suppressing dissent. The threat of King James—“I will make them conform, or will harry them out of the land, or else do worse ” — had been executed through the dread courts of the High Commission and the Star Chamber. They had fled from king, courts, and priesthood. No wonder that they trembled at the least suggestion of the former oppression.
Furthermore, the economy of the Puritan church and state did not contemplate the existence of a class or caste, least of all a class of lawyers. Even the minister, theoretically, was not one of a class, but one of a congregation. For the law the Independents turned from man’s invention to God’s ordinance. In the Bible they found an all-sufficient rule, and for its application and interpretation they looked to the men of God, the minister and godly laymen.
This attitude of the Puritans toward the legal profession was illustrated in the experience of the first Boston lawyer, one Thomas Lechford, who came to Massachusetts Bay in 1638. Lechford was not a credit to the profession. He was deficient in education, in discretion, and in professional integrity. It does not appear that he had been called to the bar. He had simply resided at an Inn of Chancery, and had not risen above the rank of scrivener. Upon his arrival at Boston, instead of trying, by devotion to his calling, to remove the popular prejudice against him, he at once took it upon himself to attack some current religious beliefs. He seems to have suffered comparatively little for his audacity. According to John Cotton, he was “dealt withall both in conference and (according to his desire) in writing.” Of course he was excluded from church fellowship, and hence from the privileges of a freeman and from civil office.
While thus at odds with the elders, he capped the climax of indiscretion by calling down upon himself the just indignation of the magistrates. Not content with his proper work of conveyancer, scrivener, or draughtsman, he essayed the office of an advocate, to which it did not appear that he had any title. Having been engaged to prosecute an action at law, his zeal for his client led him into grave misconduct, the nature of which appears from the following judgment of the General Court: “Mr. Thomas Lechford, for going to the Jewry & pleading wth them out of Court, is debarred from pleading any man’s cause hereafter, unlesse his owne, and admonished not to prsume to meddle beyond what hee shallbe called to by the Courte.”
Shortly afterward he submitted a petition for pardon, acknowledging the justice of the court, and adding that he " is comforted in this — that he hopeth it may do him good and the example be a benefit to the public.” He was allowed to resume his occupation. But however this incident affected the public, it seems not to have benefited him, for he could not resist the temptation to intermeddle. Presently he was offering advice to the governor and magistrates, and propounding queries to the elders. Finally, patience exhausted, the court again called him to account, and, as before, he escaped by craving mercy. The record is that " Mr. Thomas Lechford, acknowledging hee had overshot himselfe, and is sorry for it, promising to attend his calling, and not to meddle wth controversies, was dismissed.”
His calling, however, hardly found him bread. He was not allowed to take fees for his services as an advocate, and was forced, as he complained, “to get a living by writing petty things,” According to his journal, his total income for the two years after his arrival was about forty-seven pounds. At the end of the third year he gave up the struggle, and returned to England, declaring that “all was out of joint both in Church and Commonwealth,” and quite disgusted at the general disregard of “ worthy lawyers of either gown.” Soon afterward he tried to justify this conclusion and indignation by setting forth in detail, in a book entitled Plain Dealing or News from New England, his observations concerning the Puritan church and state.
Lechford’s sojourn in Boston must have continued public opinion against the legal profession, if one may take John Cotton as a spokesman. In a sermon delivered in 1640, referring doubtless to Lechford, he administered “a reproof to unconscionable Advocates,” that " bolster out a bad case by quirks of wit, and tricks and quillets of Law. . . . And for men that profess Religion (as many Lawyers do) to use their tongues as weapons of unrighteousness unto wickedness ... to plead in corrupt Causes, and to strain the Law to that purpose.” Moreover, what had been but a custom now took the force of law. For the Body of Liberties, adopted in 1641 as the first code, gave permission to " every man that findeth himself unfit to plead his own cause in any court, to employ any man against whom the Court doth not except, to help him, provided he give him no fee or reward for his pains. " Surely no discouragement to pleading as a profession, save its absolute interdiction, could have been found as effective as the prohibition of fees.
Besides the custom, just referred to, of employing men of superior abilities as assistants or patrons in pleading causes, there was another substitute for lawyers which had much less to commend it. A party to an action would consult regarding it, privately and beforehand, with some magistrate, — the very one, it might be, that was to sit upon the case at the public hearing. In 1641, the Rev. Nathaniel Ward, of Ipswich, severely criticised this practice in a sermon before the General Court. But the usage was justified and maintained as avoiding the necessity of lawyers, and enabling the court " to understand the cause aright.” Several years later, the public conscience being aroused, such private hearings were forbidden, and resort then became more frequent to the other alternative, the patron, usually a man of prominence in one of the recognized occupations. Among those who usually performed this service, under the Puritan rule, were John Coggan, John Watson, and Anthony Checkley, merchants ; Amos Richardson, tailor; and Benjamin Bullivant, physician and apothecary. It is likely that the patron often degenerated into the pettifogger. At any rate, he was tolerated only as a necessary evil that should be carefully circumscribed. In 1663, a law was passed excluding “usual and common Attorneys” from seats in the General Court.
The sentiment against lawyers was at this time nearly as strong in Virginia as in New England, although in the former it had sprung more from experience than from doctrine. Episcopacy, unlike Independency, was not hostile in spirit to the legal profession. But Virginia, it would seem, was a prey to a band of unscrupulous, broken-down attorneys from England ; and the extent of the affliction appears from the legislation on their account. In 1643, an attempt was made to regulate the practice of law by a system of fees, licenses, and oaths, but without avail; and two years later it was enacted that “ mercenary attorneys be wholly expelled from such office.” As in New England, the expedient was adopted of allowing a magistrate or some one from the people to assist parties in pleading causes. This plan, however, was soon found unsatisfactory, and a second attempt was made to regulate, rather than exclude, the practice of law, but, as before, without avail. In 1658, all persons, attorneys or others, who should assist in pleading causes for a compensation were made liable to a fine of five thousand pounds of tobacco.
Fortunately, these worthless adventurers confined their attention to Virginia. The middle colonies, at this time, were not subjected to such a visitation. In an account of Pennsylvania and West New Jersey, by Gabriel Thomas, published in 1698, and dedicated to “ Friend William Penn,” is the following naive observation: “ Of Lawyers and Physicians I shall say nothing, because this country is very peaceable and healthy; long may it so continue, and never have occasion for the tongue of the one nor the pen of the other, both equally destructive to men’s estates and lives.” Against the attorneys, the lawgivers, apparently, deemed some special precaution necessary; for the Fundamental Constitutions of East New Jersey provided that all parties might plead their causes either in person or by friends, no compensation being allowed.
With this practical exclusion from the colonies of men educated and devoted to the law, there was of course much crudeness in the early judicial systems. From devotion to particular religious theories, or from the tendency in new communities toward centralized government, the colonists disregarded an important English precedent, — the separation of the judiciary from the executive and the legislature. The highest court was identical, in Massachusetts, with the legislature, and, in the other colonies, generally with the executive. The very men that sat on the bench sat also in the executive council and in the legislature. As a result, the distinctions between law, morality, and religion were constantly overlooked. Not merely man’s relations to his fellows, but even his relations to his God, were placed within the province of the legislature and the courts. To take a striking example, blasphemy and idolatry were capital crimes at the same time in Massachusetts and in Maryland. In Virginia, one neglecting the daily service of the Established Church might find himself sentenced to the galleys for six months. If he did not attend the Sunday service, he might need to prepare for the next world.
The men who presided over these early tribunals were as much a product of the times as were the laws they applied or the justice they dispensed. Legal training was indeed a rare quality. But usually they were “able and judicious persons,” according to the requirement of the Virginia statute. They came chiefly from the ruling class, — the Independent oligarchy in New England, the gentry or planter class in the South. Their deficiencies and eccentricities were overlooked by the people. The judgments of John Winthrop, the Puritan governor of Massachusetts, and of Thomas Olive, the Quaker governor of West Jersey, were equally acceptable, though delivered in the one case from the platform of the Boston meeting-house, and in the other from “the stumps in his meadow.” It was reason and common sense, not legal precedents, that the judges consulted, considering each case as of novel occurrence. When these simple expedients did not suffice, — in cases of doubt or of other perplexity, — application was made, at least in New England, to the ministers.
Although, in the organization of nearly all the colonies, religion and its ministers had an important influence, in New England their power was preëminent. This was to be expected from the theocratic tendency in the government. It was also largely due to the merits of the profession. The ministers constituted the only class that uniformly received the best education afforded by the times. First Oxford and Cambridge universities, and then Harvard College, contributed much of their best product to make up this unique body of men, — the elders. Among these men, John Cotton long held the lead. “ Whatever Mr. Cotton delivered,” says Hubbard, “ was soon put into an order of court, if of civil, or set up as a practice in the church, if of an ecclesiastical concernment.” Another person of great influence was Nathaniel Ward, at first minister of Ipswich, and later a man of scholarly leisure. These men more than any others gave form to the early laws of Massachusetts; for to them was assigned the office of drafting a code of laws. Aided by some of the magistrates, they prepared a hundred laws, reinforced by marginal references to the Bible. These were adopted in 1641 as the Body of Liberties. In a similar way were prepared the codes of Connecticut and New Haven.
In such a state of society, — with the ministers as the lawgivers and ultimate arbitrators, and the Scriptures as the source of the law, — evidently there was no place for lawyers. No profession can rise or grow except to supply a want in society ; and the need of lawyers was not appreciated until the effects of their exclusion became apparent and the conditions of society changed.
Toward the close of the seventeenth century the system of administering justice began to discover its inherent defects. Through the lack of men fitted by legal training to lay before the courts the merits of causes with clearness and expedition, there was often a failure of justice or a protraction of trials, to the loss of the parties and the detriment of the public. Legal fees being small, the business of the courts and the evils of litigation increased. The system of patrons everywhere realized its tendency to become a nuisance. In 1680, the Virginia Assembly declared that the courts were hindered and troubled in their judicial proceedings by the impertinent discourses of many busy and ignorant men, under the pretense of assistance in pleading. Such persons were therefore forbidden to practice as attorneys unless previously licensed by the governor.
This example was soon followed in Massachusetts. There the condition of the courts above described coincided with a decline in the direct influence of the elders in public affairs. In 1682, the surrender of the charter being in question, the ministers were publicly consulted by the magistrates for the last time. With the institution of the royal government church membership ceased to be essential to full civil rights, and the Puritan dream of a theocracy was finally dispelled.
As the minister withdrew into his proper sphere, the lawyer emerged into prominence and usefulness. Under the direction of Bullivant, the quondam patron and apothecary, and now the new attorney-general, President Dudley reorganized the judicial system. He introduced more order into legal proceedings, and distinctly recognized the legal profession. Only the persons duly admitted on oath could practice as attorneys ; and their names and the fees fixed by law were published. Under President Dudley and his successor, Governor Andros, about a dozen attorneys were admitted. Their reputation — not to mention their attainments — was not good. Three of them, imported from New York, were employed by Andros as ready tools of his tyranny. Bullivant, perhaps the most prominent attorney, was at the same time apothecary, physician, lawyer, and politician. Although an Episcopalian, he was generally popular for his usefulness, good sense, and ready wit. Randolph, writing in 1688, lamented “ the want we have of two or three honest attorneys (if any such thing in nature).” No doubt the profession was characterized less by honesty than by quick wits and easy consciences. It was no better in the other colonies. Of the lawyers of New York, at this time, it was said that “ one of them was a dancing - master, another a glover by trade, and a third . . . was condemned in Scotland for burning the Bible and blasphemy.”
The bench, though more honest, was hardly more efficient than the bar. Of the Massachusetts judges, the three must prominent at this time, Dudley, Stoughton, and Buckley, had been educated for the ministry. Whatever learning they may have had in matters theological, they knew very little concerning the rules of evidence or the forms of legal practice. In one case, Chief Justice Dudley informed the defendant that he had no more privileges than not to be sold as a slave, and charged the jury that the court “ expected a good verdict from them, seeing the matter had been so sufficiently proved against the criminals.” In the trial of the Salem “ witches,” in 1692, the evidence presented was of a kind unique in American judicial history. If the prisoner denied his guilt, in the first place the afflicted persons testified as to the person tormenting them : then the “ confessors,” those who had voluntarily acknowledged themselves to be witches, related in court what they knew of the accused ; and finally any volunteer was allowed to present as evidence against the prisoner whatever he chose, whether or not it bore upon the charges in the indictment. Often it was admitted in evidence against the accused that a wart or mole had been found upon his body, upon examination by the jury for “witch marks. " When in one case the jury rendered a verdict of not guilty, the accusers raised a clamor and the judges expressed dissatisfaction. The jury, obedient to the public will, reversed their verdict.
Evidently this was more a popular than a judicial tribunal, yielding to the impulse of the hour rather than maintaining the independence of a court. At this trial at Salem not a person concerned had any special training in the law. Of the judges, beside Chief Justice Stoughton, Samuel Sewall had been educated to the ministry. Wait Still Winthrop and Bartholomew Gedney were practicing physicians, and Jonathan Curwin and John Richards were merchants. At least three of these had some reputation in military affairs, and as many had been prominent in the conduct of the government. It can be said of Samuel Sewall alone that he is remembered chiefly for his connection with the courts. From his journal it appears that, with a natural bent for the law, he had pursued some legal study and had instituted some reforms in the courts. But in general a legal education was not deemed essential in those chosen to interpret the law. Frequently other callings, for which they had some aptitude or preparation, were followed at the same time. Apparently there was thought to be no incompatibility between dispensing justice and prescribing medicines.
But adherence to the Puritan faith and practice was still deemed a valuable qualification, if not a requisite, in a judge. Often the utterance from the bench took the form of a sermon. It was this conservatism in Samuel Sewall that endeared him to the people. In his diary he quaintly describes the opening for the court of the new Town House in Boston, incidentally revealing some traits of his character and the customs of his day: “Dr. Cotton Mather having ended prayer, the clerk called the Grand Jury, giving their charge which was to enforce the Queen’s proclamation, and especially against travelling on the Lord’s day. I said . . . seeing the former decayed building is consumed, and a better built in the room, let us pray that God would take away our filthy garments and clothe us with a change of raiment, that our sins may be buried in the ruins and rubbish of the former house, and not be suffered to follow into this. . . . May the judges always discern the right, and dispense justice with a most stable permanent impartiality. Let this large transparent costly glass serve to oblige the attorneys always to set things in their true light.”
The eighteenth century opened a new era in the administration of justice. A decided improvement was early noticeable in the forms of proceedings, in the dignity and impartiality of the courts, and in the ability and integrity of the attorneys. In Massachusetts this was due largely to four men, whose careers extended over the first half of the eighteenth century. They constituted the first group of eminent lawyers in Massachusetts. They were Benjamin Lynde, Paul Dudley, John Read, and Robert Auchmuty, the elder. The first three were graduates of Harvard College. Lynde and Dudley, after a thorough course in law at the Temple, London, returned to the colony, and were soon called to the bench of the Superior Court, filling between them the position of its chief justice from 1728 to 1751. Lynde was the first member of that court that had received a careful legal training. When he took his seat on the bench, in 1712, the significance of the event was emphasized by Judge Sewall. This noble representative of the old school, in addressing the jury, expressed the hope that they would now “ have the advantage of an Inns of Court education superadded to that of Harvard College.” Indeed, from this time may be dated the rise of the law as a liberal profession. A thorough knowledge of law and a high sense of honor were in some cases associated with distinction in literature or science. Paul Dudley was not only a jurist, but also a theologian and a naturalist; and his scholarship was recognized abroad by an election to the Royal Society.
While Lynde and Dudley lent learning and ability to the bench, their contemporaries, John Read and Robert Auchmuty, attained eminence at the bar. Read, spending his early manhood in the study of theology and in the work of the ministry, was not admitted to the bar till about 1720, when nearly forty years of age. Yet such were his assiduity and versatility that he soon attained the highest rank. James Otis spoke of him as “ the greatest common lawyer the country ever saw.” He was eccentric withal. It is related of him that he would “ travel incognito in the other colonies, and occasionally would volunteer in the defense of actions, and always astonish both courts and juries by his profound learning, his captivating eloquence, and his sparkling wit.” Like Chief Justice Dudley, John Read possessed scholarship apart from his profession. He contributed to literature a Latin grammar and some political essays.
Through the exertions of these men much was done toward systematizing the practice of law, and elevating the character of the profession in Massachusetts. As a result, the Puritan prejudice gave way, and lawyers began to take a prominent part in public life. Robert Auchmuty filled acceptably the public offices of director of the Land Bank and representative of the province in England. John Read had the honor of being the first lawyer ever chosen a member of the General Court, representing Boston for the first time in 1738. After several terms in the lower house, he became a member of the council. His reputation and ability were as great in the legislature as at the bar.
In fact, from the middle of the eighteenth century to the Revolution, politics more and more employed the services of the legal profession ; and for this work they were well fitted by their broad experience in affairs and by their simple but vigorous discipline. The standard for admission to the bar had everywhere been raised. The distinction between barristers and attorneys was recognized. In Massachusetts, a practice of three years in the inferior court was required for admission to the higher tribunal; and in 1766 the rule was adopted that after the third year of study one might become an attorney, after the fifth a counselor, and after the seventh a barrister. In Virginia, only those attorneys were barristers who were such according to the law of England; and any one desiring to practice in the lower courts was required to pass an examination by a committee of the bar. In New York, three years at college or seven years in an office were required for admission. Of course the range of legal studies was limited. In New England, comparatively few followed the example, set by Benjamin Lynde and Paul Dudley, of a residence at the Inns of Court. In Virginia, more enjoyed this privilege, among them notably Colonel Byrd, of Westover, who was admitted to the bar in the Middle Temple. The scarcity of books on law as well as the laxity in admission to practice is illustrated in the experience of James Otis, the elder. While he was by chance attending court, having as yet no intention of becoming a lawyer, he was induced to assist a party to a cause who had no counsel. He succeeded so well that, urged by the court and by his friends, he decided to take up the law. He procured “such books as were then to be obtained,—Coke’s Institutes, Brownlow’s Entries, and Plowden’s Commentaries and Reports, — and commenced reading and practicing.” A private library was thought to be considerable if it contained fifty volumes. John Read’s books, inventoried shortly after his death in 1749, were but forty-three in number, and were valued at less than two hundred pounds.
Even in England the choice of books was not much larger. Sir William Blackstone did not publish his Commentaries till 1765. What the student of law lacked through scarcity of books he tried, it would seem, to make up in method of study, if we are to judge from the directions given by Lord Chief Justice Reeves: “Read Wood’s Institutes cursorily, and for explanation of the same Jacob’s Dictionary. Next strike out what lights you can from Bohun’s Institutio Legalis, and Jacob’s practicing Attorney, Companion, and the like, helping yourselves by Indexes. Then read and consider Littleton’s Tenures without notes, and abridge it. Then venture on Coke’s Commentaries. After reading it once, read it again, for it will require many readings. Abridge it. Commonplace it. Make it your own, applying to it the faculties of your mind. Then read Sergeant Hawkins to throw light on Lord Coke. Then read Wood again to throw light on Sergeant Hawkins. And then read the Statutes at large to throw light on Mr. Wood.”
Undoubtedly such a process, if carried out, was likely to throw much light on the books involved. At any rate, it gave strength and keenness of mind; and these qualities were possessed to a remarkable degree by the last group of colonial lawyers. Many of them had also a liberal education. Indeed, the time was fast passing away, especially in New England, when it could be said that the ministry was the only educated class in the community ; for many college graduates, of social position and of high promise, turned to the practice of law, both for its own growing importance and as a desirable road to polities. As a result, the profession rapidly increased in numbers. According to Emory Washburn, late professor in the Harvard Law School, there were in 1768 “twenty-five barristers in the whole of Massachusetts, which, there is reason to believe, was more than double the number of those who were in practice twenty years before that date. Of these, ten were in Boston.” At the opening of the Revolution, there were thirty-six barristers, and at least ten attorneys not yet made barristers. The profession was rapidly gaining the public esteem and confidence. In learning, ability, and integrity, the bar of Massachusetts was equaled by that of no other colony, Virginia possibly excepted.
Until near the dose of the colonial period there were few lawyers in Virginia whose character or attainments made them conspicuous. One of the few was Sir John Randolph, long attorney-general of the colony. In his Breviate Book, Randolph mentions a contemporary, Williams Hopkins, “ a very ingenious lawyer and a good pleader,”and laments his death as a “loss to this poor country which is not like to abound (at present, at least) in Great Geniuses.” Within a few decades, this complaint was no longer pertinent ; for there came forward at the bar a group of young men, of whom several possessed culture, wealth, and social position, all had marked abilities, and some proved to be “ great geniuses.”
In other colonies, also, — particularly Pennsylvania, New Jersey, Maryland, and South Carolina, — the legal profession had attained, prior to the Revolution, a position of respectability and influence ; but in none so much as in Massachusetts and Virginia did it constitute a conspicuous and powerful class. In these colonies, it accepted and performed to a large degree the duty of arousing and guiding the public sentiment for the preservation of liberty against the encroachments of Great Britain. From the lawyer’s work sprung the Revolution.
In this great, this crowning service which the legal profession in the colonies was called to do the country, many distinguished lawyers took part, among others John Adams, Joseph Hawley, and Josiah Quincy in Massachusetts, and Thomas Jefferson, James Madison, and Richard Henry Lee in Virginia. But, with exceptions, the chief work of these men was at a later stage, — conducting the war for independence or organizing and administering a national government. But to James Otis, Jr., and Patrick Henry is due the honor of being the first to lay bare the designs of England and to stir their countrymen to resistance, — and that, too, in the regular work of their profession.
The first case that called into action this double capacity of lawyer and patriot was in Massachusetts. In it were engaged several leaders at the bar, and its incidents have been preserved with great care. It was the argument before the Superior Court upon the application for the Writs of Assistance, in 1761. The counsel in this case were Jeremiah Gridley for the application, and Oxenbridge Thacher and James Otis, Jr., against it. All three were graduates of Harvard College. Both Gridley and Thacher had studied theology and been preachers. The former had afterward successively taught school and edited a newspaper. Having finally applied himself to the law, he had become distinguished particularly for the extent and accuracy of his learning. His experience and eminence at the bar had made his office a favorite resort for students. Among many others, Thacher and Otis themselves had thus obtained their legal education. Otis’s rise had been very rapid. Within a few years after his admission to the bar he had been appointed advocate-general. He had held this office till 1761, and then had resigned it rather than sustain the application in this case. Of the three, Gridley excelled as a scholar, Thacher as a reasoner, and Otis as an orator. Such were the antagonists in this famous contest. The scene is graphically described by John Adams, an eye-witness. The court sat in the council-chamber of the Old State House, Boston. “ In this chamber near the fire were seated five judges with Lieut. Governor Hutchinson at their head, as Chief Justice, all in their new relies of scarlet English cloth, in their broad hands and immense judicial wigs. In this chamber were seated at a long table all the Barristers of Boston and its neighboring County of Middlesex, in their gowns, bands and tye-wigs. They were not seated on ivory chairs, but their dress was more solemn and more pompous than that of the Roman Senate when the Gauls broke in upon them.”
The question at issue arose out of the attempt of England to enforce her monopoly of the colonial commerce as instituted by the Acts of Trade. In spite of these acts, there had sprung up with the West Indies a lively contraband trade in sugar and molasses, which His Majesty’s officers of customs were powerless to prevent. They had therefore applied to the Superior Court for writs of assistance in a general form, directed to any person, and authorizing him to enter any house or other private inclosure, in search for smuggled goods. It was the question of granting such writs which the court was to decide.
The counsel had been particularly requested “ to look into the books and consider the question ; ” and it is safe to say that in America no argument before — and few since — was presented with so much learning, ability, and eloquence. It was chiefly to this consideration of legal precedents that Gridley and Thacher applied themselves. But Otis declared at the outset that he appeared not only in behalf of his clients, but also “out of regard to the liberties of the subject.” His argument soon transcended “ the books, " and grasped the ultimate hearings of the question. He did not deny the legality of special writs of assistance, granted to certain persons on oath, to search specified places within a definite time. But a writ like the one in question, with no limitations whatever to its use, he denounced as “ the worst instrument of arbitrary power, the most destructive of English liberty. " Indeed, this was the point upon which he dwelt, — the effect on his countrymen, as Englishmen, not of these writs alone, but also of the Navigation Act and the Acts of Trade. “Considered as revenue laws, they destroyed all our security of property, liberty, life, every right of nature and the English constitution, and the charter of the province.”
“ Otis,” says John Adams, “ was a flame of fire. With a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities, a prophetic glance of his eye into futurity, and a torrent of impetuous eloquence, he hurried everything before him.”
The Writs of Assistance were not granted. But, more than that, the growing public sentiment against the encroachments of Great Britain had found voice. Thenceforth this protest increased in volume and spread over all the colonies. John Adams truly said, “Mr. Otis’s oration against writs of assistance breathed into this nation the breath of life.”
Two years later, in 1763, a case was argued in Virginia, the effect of which at the South was similar to that of the Massachusetts case at the North. It presents equal interest in its incidents and in the persons engaged. It was the Parsons’ Cause. In order to understand the point at issue, let it be borne in mind that in Virginia the Church of England was established by law, and hence the clergy, like other public servants, received salaries out of the public revenues. In 1748, this salary was fixed by law at sixteen thousand pounds of tobacco, and for its collection and payment the parish vestry were made responsible. What value in pounds sterling the clergymen actually realized varied, of course, from year to year, with the market price of tobacco. In 1758, tobacco being scarce, the price went up, and the clergy were expecting that this rise would offset their losses through a fall in price the preceding year. But at this point the legislature authorized vestries to pay the salaries in the depreciated paper currency, at a fixed rate — much below the market price — for each pound of tobacco due. Great losses resulted to the clergy. Owing to the growing dissent from the Established Church, they were unpopular, and could not obtain redress. Hence they sent an agent to England, and obtained the royal disallowance of the legislative interference. They thereupon brought suits in the province against their vestries. In the case of the Rev. James Maury, rector of Fredericksville parish, Louisa, the court, in view of the royal disallowance, declared the Act of 1758 not to be law. Hence it only remained for a jury to determine what damages the rector had sustained by the unwarranted curtailment of his salary.
At this point — their case apparently hopeless — the vestry turned to Patrick Henry. For this service the young attorney was ill prepared, to judge from his early history. After some grounding in Greek, Latin, and mathematics, his schooling had ended with his fourteenth year. Within the next eight years of his life he had failed twice in trade and once in farming. In 1760, at the age of twenty-three, he had at last gained a success, — admission to the bar, — but by what means it would have been difficult to explain, for he had studied law but one month, and during this time had read only Coke on Littleton and the Virginia Statutes. Since then, however, for nearly four years, his success in practice had been remarkable; and he was now engaged for a final effort to save the sinking cause.
At the argument before the jury for the assessment of damages, there was much to embarrass the new attorney. In the chair of the presiding magistrate sat none other than his own father, and on the bench, also, were some twenty learned clergymen of the province. Moreover, the evidence pointed to large damages against his clients. But the dense crowd in the court-room vibrated with sympathy in his behalf, and the jury, if not likewise disposed, were of the lower class, — a facile clay for the skillful hand. It was soon evident that he perceived his opportunity, and could use it to his will. Like his contemporary, James Otis, he turned from the immediate legal issues to the ulterior relations involved. He first played upon the sentiment against the clergy. They were supported at the public expense, he declared, chiefly for the purpose of enjoining obedience to the civil laws, and hence they had forfeited their claim to consideration, — especially to damages in this case, — having presumed to dispute the people’s will as embodied in the Act of 1758. But he went much farther. The government of the colony, he asserted, was the only power that could give force to its laws; and “ a king, by disallowing acts of this salutary nature, from being the father of his people, degenerated into a tyrant, and forfeits all rights to his subjects’ obedience.”
From an awkward and faltering opening, the speaker had been gradually kindled and transformed by his thought, until at last his hearers were completely overcome by his insinuating argument and his wonderful eloquence. The jury, after a delay of barely five minutes, rendered a verdict of one penny damages ; the court speedily overruled a motion for a new trial; and the young orator was borne from the court-room on the shoulders of the crowd.
The effect of these two striking incidents in judicial and colonial history was immediate and manifold. To James Otis, Jr., and Patrick Henry it gave a reputation for eloquence unprecedented at the time, and hardly equaled in our annals. It also brought an increase of practice quite beyond, it is safe to say, the merits of their professional attainments as compared with those of their contemporaries. Moreover, it brought them into extraordinary prominence in politics. They were soon chosen to their respective legislatures, and there continued, though not with uniform consistency, the agitation they had begun at the bar.
But more important still was the effect of their words upon their respective communities. In Massachusetts, the party divisions that had unconsciously been forming now took clearer outline. Some conspicuous leaders, including members of the bar, boldly joined the Tory ranks, and others, hitherto lukewarm, earnestly espoused the colonial cause. In Virginia, expression was emphatically given to the rising sentiment of the people against a church imposed upon them and separated from their needs, yet compelling its support from their hands. At the same time the thought was suggested that the people of the colonies had rights, long overlooked, but belonging to them as Englishmen, which should be enforced, though conflicting with the will of Great Britain. Should the haughty planters renounce the popular cause, then would Patrick Henrys arise up in their stead. In short, the Writs of Assistance Case and the Parsons’ Cause supplied the arguments and the men that turned the wavering colonists toward resistance and revolution.
Frank Gaylord Cook.