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Licensing the lawyers

Here’s a true or false question for you:

In 1646, if your ancestor was involved in a lawsuit in Virginia, he could hire a lawyer to represent him in court.

True or false?

liftarn_English_lawyerThis isn’t a trick question based on the fact that there weren’t a whole lot of trained lawyers in the colonies. After all, the first school to actually teach anyone about the law in America was the College of William & Mary in 1779, when it made George Wythe a professor of law.1

No, this is a straightforward question of law.

And yes, before you ask, The Legal Genealogist was poking around in the old statute books again last night and that’s what led to this question.

Because the answer is in the statutes of Virginia, and it’s nothing I’d come across before.

In March 1642/3, the Virginia assembly passed an act that

it shall not be lawfull for any attorney to plead causes on behalfe of another without license or permission first had and obtained from the court where he pleadeth, Neither shall it be lawfull for any attorney to have license for mor courts then from the quarter court and one county court, and that they likewise be sworne in the said courts where they are so licensed.2

The law went on to fix the maximum fees a lawyer could charge: in any county court, not more than 20 pounds of tobacco or its value, and in the quarter court, not more than 50 pounds of tobacco or its value. Price gouging carried steep penalties — 500 pounds of tobacco in the county court, and 2,000 pounds in the quarter court.3

And a lawyer couldn’t turn down a case either, unless he’d already been hired by the other side. If he did, the penalty was 250 pounds of tobacco for a county court case and 1,000 pounds of tobacco in the quarter court.4

Somehow, that kind of regulation doesn’t give me the warm and fuzzies about the behavior of the earliest members of my profession. What exactly were these early lawyers doing that so annoyed the legislators that they felt they had to pass a law about it?

Whatever it was, it got the lawmakers’ blood roiled up, but only with respect to the pay-for-play boys. You could still have an attorney-in-fact — an ordinary person you chose to handle your affairs for you5 — a common occurrence at a time when people lived a long way from the courts (and might have been in England but owned land in Virginia).

And, whatever it was, it continued to get the lawmakers’ blood roiled up, because in November 1645, another statute was passed:

WHEREAS many troublesom suits are multiplied by the unskillfullness and coveteousness of attorneys, who have more intended their own profit and their inordinate lucre then the good and benefit of their clients: Be it therefore enacted, That all mercenary attorneys be wholly expelled from such office, except such suits as they have already undertaken, and are now depending, and in case any person or persons shall offend contrary to this act to be fined at the discretion of the court.6

The definition of “mercenary attorney,” by the law, was somebody who practiced in the courts for money.7 And when that ban was enacted, the licensing law was repealed.8

So the answer to the question here is false: your ancestor, or mine, couldn’t legally have hired an attorney to represent him in a Virginia court in 1646.

Or in 1647… or 1648… or 1649… or…

Oh, if our ancestors were really disadvantaged — poor illiterates up against the local sharpster — the law did allow the court to step in and perhaps even appoint a local citizen to help out.9

But it wasn’t until 1656 that the ban on professional lawyers was repealed10 and by 1658 the law again was changed so that lawyers couldn’t charge for their professional services.11

The first law again allowing Virginia lawyers to charge for what they did was in 1680, and that was because:

all courts in this country are many tymes hindred and troubled in their judiciall proceedings by the impertinent discourses of many busy and ignorant men who will pretend to assist their freind in his busines and to cleare the matter more plainly to the court, although never desired or requested thereunto by the person whome they pretended to assist, and many tymes to the destruction of his cause, and the greate trouble and hindrance of the court…12

Now you might thing that’d be the end of it, bringing the professionals in to replace the amateurs. But no… the act of 1680 was also repealed.13 It wasn’t until 1718 that professional lawyers were admitted to practice in the courts again if licensed to do so.14

I couldn’t find a reference to a law banning lawyers entirely after 1718, but the law still regulated attorneys’ fees.15

Sigh… at least Virginia was a little better than Shakespeare.

At no time did the legislators ever openly advocate killing all the lawyers.16


SOURCES

Image: User Liftarn, OpenClipArt.org.

  1. Davison M. Douglas, “Jefferson’s Vision Fulfilled,” America’s First Law School, William & Mary Law School (http://law.wm.edu/ : accessed 3 Mar 2014).
  2. Act LXI, Laws of March 1642/3, in William Waller Hening, compiler, Hening’s Statutes at Law, Being a Collection of all the Laws of Virginia from the first session of the Legislature, in the Year 1619, 14 vols. (1819-1823; reprint ed., Charlottesville: Jamestown Foundation, 1969), 1: 275.
  3. Ibid.
  4. Ibid.
  5. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 105, “attorney in fact” (“A private attorney authorized by another to act in his place and stead, either for some particular purpose, as to do a particular act, or for the transaction of business in general, not of a legal character”).
  6. Act VII, Laws of November 1645, in Hening, comp., Hening’s Statutes at Law, 1: 302.
  7. Oliver P. Chitwood, Justice in Colonial Virginia (Baltimore: Johns Hopkins Press, 1905), 116; digital images, Google Books (http://books.google.com : accessed 3 Mar 2014).
  8. Act VII, Laws of March 1645/6, in Hening, comp., Hening’s Statutes at Law, 1: 313.
  9. Ibid., Act XVI, Laws of November 1645, at 1: 349.
  10. Ibid., Act VI, Laws of December 1656, at 1: 419.
  11. Ibid., Act CXII, Laws of March 1657/8, at 1: 482.
  12. Ibid., Act VI, Laws of June 1680, at 2: 478.
  13. Ibid., Laws of November 1682, at 2: 498.
  14. Chitwood, Justice in Colonial Virginia. at 117.
  15. Chap. I, Laws of 1718, in Hening, comp., Hening’s Statutes at Law, at 4: 59.
  16. William Shakespeare, Henry IV, Part II, act IV, Scene II.
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