Page:The Green Bag (1889–1914), Volume 24.pdf/564

 Warren's History of the American Bar1 BY LEE M. FRIEDMAN OF THE BOSTON BAR Fhas long been the fashion at bar association meetings for speakers to deplore the evil days upon which we have fallen when lawyers no longer hold the public confidence and com mand the positions of leadership in the community. They speak of the early American lawyers as "the fathers of our Constitution." They point to those early days of American history as the golden age of lawyers, and groan over the present assaults on the bench and the titles of dishonor heaped upon the bar, as if it was entirely a new mani festation of degeneration of the present age. They seem to forget that long before the discovery of America Jack Cade proposed to begin his reforms by first killing off all the lawyers, and that if examined closely there never was an age when lawyers were popular favor ites with their fellowman. Law and lawyers have ever been fearsome things to the layman. Milton voiced a peren nial popular sentiment when he wrote: — Most men are allured to the trade of law, grounding their purposes not on the prudent and heavenly contemplation of justice and equity which was never taught them, but on the promising and pleasing thoughts of litigious terms, fat contentions and flowing fees. Not only did the good Puritan fathers import the inherited antipathy to law yers into the early American colonies, but also the popular distrust of the Common Law of England. Far from be ing proud of it "as their birthright," they were decidedly anxious to escape 1 A History of the American Bar. By Charles Warren of the Boston bar. Little, Brown & Co., Boston. Pp. 662 + 24 (appendix and index). ($4 net.)

from it. The common law was neither popular nor a source of pride. It was popularly and stoutly denied that the laws of England had followed to the ends of the earth. In the early days in Massachusetts, the ministers arrogated to themselves the functions both of legislators and of the judiciary. Thomas Lechford, one of the first professional lawyers to attempt to practise there wrote in 1642: The ministers advise in making of laws, espe cially ecclesiastical, and are present in courts and advise in some special causes annual and in framing of Fundamental Lawes. Matters of debt, trespass and upon the case, equity, yea and of heresy also are tryed by a jury. Another contemporary wrote: — The preachers by their power with the people made all the magistrates, and kept them so entirely under obedience that they durst not act without them. Soe that whenever anything strange or unusual was brought before them, they would not determine the matter without consulting their preachers.

Indeed the first lawyers in that colony fared but ill. Thomas Morton, who de scribed himself as "of Clifford's Inn Gent." but better remembered by Gov ernor Bradford's description, "a kind of petite fogger of Furnewells Inne" came to Massachusetts about 1625 and settled near Quincy. Contemporary complaint reported that he maintained: a school of atheisme, set us a maypole and did quaff strong waters and act as they had anew revived and celebrated the feast of ye Roman Goddess Flora or the Beastly products of ye madd Bacchanalians. and he was soon shipped out of the coun try. Thomas Lechford of Clements Inn began practice about 1638 in Boston. For some time he was what Washburn