The American Judiciary Part 20

The qualifications for admission to the bar are generally left to be regulated by the courts. In a few States they are fixed by const.i.tutional or statutory provisions. In all, when the Const.i.tutions do not regulate it, the legislature can. It has indeed been a.s.serted that the admission of attorneys is in its nature a matter for the courts only.[Footnote: See _American Law School Review_, I, 211.] English history does not support this contention.[Footnote: Pollock & Maitland, "History of English Law," I, 211-217; II, 226. O'Brien's Pet.i.tion, 79 Connecticut Reports, 46; 63 Atlantic Reporter, 777.] The Inns of Court, which are mere voluntary a.s.sociations of lawyers, have from time immemorial exercised the function of calling to the bar, so far as barristers are concerned, and the admission of attorneys has always been regulated by Acts of Parliament.[Footnote: See In the Matter of Cooper, 22 N. Y. Reports, 67, 90.] By our American legislatures the same course has been generally pursued.

The duty of ascertaining whether candidates for admission have the prescribed qualifications is occasionally performed by the judges in person; more often by a committee of the bar appointed by the court for that purpose; in some States by a standing board of State examiners, receiving compensation for their services.[Footnote: This comes from fees paid by those examined.]

The latter method was introduced in the latter part of the nineteenth century and is steadily gaining in favor. A committee of a local bar is unavoidably subject to some local influences or prepossessions. A State board can act with greater independence and maintain with more ease a high standard of admission.

In early colonial days the legislature sometimes set a limit to the number of attorneys who could be allowed to practice before the courts. In some colonies the number at the bar of a particular court was fixed; in others the number of lawyers in each county.[Footnote: Acts and Laws of the Colony of Conn., May session, 1730, Chap. LIV. Hunt, "Life of Edward Livingston," 48.]

No such limitation now exists in any State, and the matter is left to be regulated by the law of supply and demand. This by the census of 1900 required over 114,000.

The freer a country is, and the quicker its step in the march of civilization, the more lawyers it will naturally have. The growth and importance of the bar are stunted wherever it is overshadowed by an hereditary aristocracy. A land of absolutism and stagnation has no use for lawyers. The inst.i.tutions of China would not be safe if she had a bar. Lawyers are a conservative force in a free country; an upheaving force under a despotic government. In Russia one is found enough to serve over thirty thousand; in the United States there is about one to every six hundred and sixty of the population,[Footnote: In 1870, there was one to every 946; in 1880, one to every 782.] and in England one to every eleven hundred.

The colonial lawyers of the seventeenth and eighteenth centuries occupied an inferior place in the community as compared with that now held by the legal profession. There was comparatively little opportunity to rise to eminence. The positions on the bench, as has been seen, were largely held by those not trained as lawyers.

Before such judges it was a waste of words to make elaborate arguments on points of law.

Among the first settlers were a few who had been educated for the English bar. One of them, in Ma.s.sachusetts, Rev. Nathaniel Ward, drafted the _Magna Charta_ or "Body of Liberties" of that colony, adopted in 1641. His opinion of the need of lawyers may be inferred from the fact that it provided expressly that those who pleaded causes for others should receive no compensation for it. Virginia adopted the same policy from 1645 to 1662. Later, lawyers practicing in Ma.s.sachusetts were excluded from the General Court. As that had large judicial powers, it was thought fitting to give no opportunity to any to sit there to-day to judge and to appear to-morrow before an inferior court to argue as an advocate.[Footnote: Hutchinson, "History of Ma.s.sachusetts,"

III, 104.]

As time went on, an American was occasionally sent to London to read law. He was apt to be a young man of fortune, who entered the Temple or the Inns of Court more as a means of gaining pleasant acquaintances than for any serious purpose of education.

Most of them came from Pennsylvania and the Southern colonies.

Two Presidents of the Continental Congress, Randolph and McKean, four signers of the Declaration of Independence, Heyward, Lynch, Middleton, Edward Rutledge, and John Rutledge, one of the first a.s.sociate justices of the Supreme Court of the United States, were of the number.

Not infrequently there were legal proceedings in London which concerned colonial interests. Their charters were attacked or colony laws and judgments put in question before the Lords of Trade and Plantations. In such proceedings, if counsel were needed, English barristers were generally employed. An American lawyer now and then went over to consult with them and perhaps to join in the argument, but the leading part was theirs.

It was not until the quickening and deepening of American life which preceded and portended the Revolution that anything like a colonial bar, led by a man of learning and position, really came into existence.[Footnote: "Two Centuries' Growth of American Law," 16.] From the middle of the eighteenth century to its close there was a steady and rapid progress in this direction.

Legal education was taken seriously. In the case of many it began with the fundamental notions of justice and right. The Greek and Latin cla.s.sics on those heads were read.[Footnote: "Life of Peter Van Schaick," 9.] The private law of the Romans was studied to a greater extent relatively than it is now. The first chair of law in the United States was established at William and Mary College in 1779, and there, under Chancellor Wythe, John Marshall was a student. President Stiles of Yale, in his "Literary Diary," so full of that kind of historical incident which after a few years have pa.s.sed it is most difficult to trace, enumerates the books read by his son, Ezra Stiles, Jr., between 1778 and 1781, in preparation for the Connecticut bar, under the advice and in the offices of Judge Parker of Portsmouth and Charles Chauncey of New Haven. They comprehended, besides much in English and Scotch law, Burlamaqui's _Principes de Droit Naturel_, Montesquieu, _de l'Esprit des Lois_, the Inst.i.tutes of Justinian, certain t.i.tles of the Pandects, and Puffendorf _de Officio Hominis et Civis juxta Legem Naturalem_. James Kent at about the same time was reading Grotius and Puffendorf in the office of the Attorney-General of New York, and Edward Livingston, under Chancellor Lansing, explored all parts of the _Corpus Juris Civilis_.[Footnote: Hunt, "Life of Edward Livingston," 41.] John Quincy Adams a few years later, under the instruction of Chief Justice Parsons of Ma.s.sachusetts, took up Vattel and the Inst.i.tutes of Justinian.[Footnote: Report of the American Bar a.s.sociation for 1903, 675, note.] The latter, as well as Van Muyden's _Compendiosa Tractatio_ of them, his father had studied in his preparation for the bar thirty years before.[Footnote: "Life and Works of John Adams," I, 46.]

The lectures of Chancellor Wythe at William and Mary, like those of Mr. Justice Wilson in 1790 at the University of Pennsylvania and of Chancellor Kent in 1794 at Columbia, were designed, as were Blackstone's at Oxford, to give such information as to the nature and principles of law as might be of service to any one desirous of acquiring a liberal education. Such instruction could not be considered as anything approaching a proper preparation for entering on the practice of the legal profession.

The United States preceded England in the endeavor to provide such a preparation by a systematic course of study pursued under competent teachers at a seat of learning established for that sole purpose.

The need of something of the kind was felt to be pressing after the independence of the United States had been fully established.

An unusual number of young men of promise were turning from the army to the bar.[Footnote: "Memoirs of James Kent," 31. In 1788, the number of attorneys in the State of New York had risen to 120. Morse's "American Geography," ed. 1796, 506. Thirty years later it was 1,200. Miles' "Register," XIV, 311.] Those already members of it had educated themselves as best they could, with slight a.s.sistance from the lawyers in whose offices they had studied. They in turn were indisposed to do more for such as might desire to read law in their offices. Few of them were competent to do much.[Footnote: See "Life of Peter Van Schaick,"

9, 13.]

There was a demand for a professed school of law, and in 1784 the first in any English-speaking country was opened at Litchfield, Connecticut. There are now 104 of them,[Footnote: Report of the American Bar a.s.sociation for 1903, p. 398.] with a total attendance of over fourteen thousand students. The course of study in a few may be completed in one year; in most two are required; in the rest three, with perhaps an offer of a fourth for advanced instruction leading to the degree of master or doctor of laws. The ordinary degree is that of bachelor of laws (LL.B.).

The American Bar a.s.sociation has had an important influence from its first organization, in 1877, in prolonging the period and raising the standards of legal education. In affiliation with it there is an "a.s.sociation of American Law Schools," representing a large majority of the teachers and students engaged in law school work. This admits no inst.i.tution into its ranks at which students are received without a preliminary education at least equal to that given by the ordinary high school. A few of the schools so a.s.sociated receive no student, save in exceptional cases, unless he already holds a degree in arts, science, philosophy, or letters from some collegiate inst.i.tution.

In several of the States having boards of State examiners no one is admitted to the final examination before them who did not prior to the beginning of his education receive one of the degrees above indicated or else pa.s.s a special examination before the same board on certain prescribed studies, corresponding substantially with those ordinarily pursued in a high school.

Some proof is everywhere required that an applicant for admission to the bar possesses a good moral character. It is necessarily largely a matter of form. Certificates are sometimes required from those familiar with his previous life, and sometimes the mere motion for his admission by a member of the bar representing the examining committee is accepted as sufficiently implying that no unworthy person would be thus presented.

In a few States a distinction is made between attorneys with reference to the courts in which they may practice. When first admitted it is to the bar of the trial courts. Later, after a few years of experience, they can be admitted on further examination to practice also in the highest courts of the State.

This distinction reaches back, in New Jersey, to the colonial era. Attorneys were there a different cla.s.s from "counsellors,"

and, following the English practice, the style of "sergeant" was also formerly bestowed on leaders at the bar. The last lawyer bearing the t.i.tle survived until nearly the middle of the nineteenth century. In this State the Governor has always issued the licenses or commissions to attorneys and solicitors in chancery, but for more than a hundred and fifty years only on the recommendation of the Supreme Court.[Footnote: _In re_ Branch, 70 N. J. Law Reports; 57 Atlantic Reporter, 431.]

The admission of attorneys in the several courts of the United States is determined by rules which they respectively establish from time to time. These rules make the only qualification membership in regular standing for a certain period of time in the bar of a State and good moral character.

There is no doubt that the United States have been in advance of England both in providing means of legal education and in requiring their use. The length of the course of study now established at our older Law Schools--three years--seems all that can reasonably be exacted, if a proper foundation of general discipline and knowledge has been previously laid. The first provision for one or more years of graduate study for those who may desire it was made at Yale University in 1876, and a similar opportunity has since been offered at several others; but it has been availed of by few, and of these a considerable part had in view the teaching of law as their ultimate vocation rather than its practice.

Unquestionably the American bar is now, as a whole, a far better trained cla.s.s of men than it was twenty or thirty years ago, and the efficiency of the courts has been correspondingly increased.

Members of the bar are always subject to punishment by the court for official misconduct. This may be by censure, temporary suspension from practice, or disbarment. If guilty of contempt of court, they can also be sentenced to fine or imprisonment.[Footnote: See Chap. XX.] As suspension or disbarment means a loss, temporary or permanent, of a livelihood, it is only ordered in aggravated cases and after an opportunity for a formal hearing.

Disbarment cannot be decreed by the legislative department. That would be virtually an act of attainder. It must come from a judicial sentence.[Footnote: _Ex parte_ Garland, 4 Wallace's Reports, 333, 378.]

In some States the princ.i.p.al trial court, which is the one by order of which attorneys generally are admitted to the bar, appoints a standing committee on grievances. In others such committees are created by Bar a.s.sociations, of which almost every State has one for the whole State, while several have also one or more local a.s.sociations. It is the duty of such a committee to inquire into any instances of professional misconduct that may be brought to their notice and either inst.i.tute proceedings for a hearing before themselves or bring the matter to the attention of the court, so that they may be inst.i.tuted there by its order and conducted by the public prosecutor. In the larger States, several inquiries of this nature are ordinarily set on foot every year, which result in suspension or disbarment. In the smaller States they are rare, both because they have smaller bars and because the smaller a bar is the more difficult is it for any one of its number to hide any misdoing from the rest.

The Bar a.s.sociations, which first began to start up soon after the Civil War, have been of great service in upholding the honor of the profession. Their Const.i.tutions generally name this particularly as among their professed objects. One State[Footnote: Alabama] has recently under such influences, pa.s.sed a statute making it a misdemeanor for an attorney to send out "runners" to solicit practice, and requiring the public prosecuting officer to inst.i.tute proceedings for any violation of the law, upon the complaint of the council of the State Bar a.s.sociation.

The steadily and rapidly increasing proportion of lawyers to the population in the United States necessarily tends to a lowering of their average professional income, and this tendency is not fully overcome by the increase of the wealth and business of the country. The principle of the concentration of industry also works against the great majority of them. Searching t.i.tles to real estate, for instance, was until the last half of the nineteenth century part of the business of every lawyer. It is now in the larger cities monopolized by certain firms or corporations, who own copies or abstracts of the public records, laboriously prepared, which give them special facilities for doing the work rapidly and well. So collecting uncontested debts was formerly the staple of many a lawyer's practice. The general abolition of imprisonment for debt about the middle of the nineteenth century rendered the process much more difficult and the fees less, and of late years great collection agencies, generally corporations, have sprung up, with an extensive system of correspondents among members of the bar, by whom most suits of such a nature are now brought under an agreement to divide their fees with the central bureau.

Until the last half of the nineteenth century there were probably no lawyers in this country whose average net income from year to year was equal to that of the leaders of the English bar. In 1806 there was but one lawyer in New England with an annual professional income of $10,000: until about 1860 there was none in Connecticut, and probably not over a hundred in the entire country.[Footnote: Parton, "Life of Aaron Burr." 153; Great American Lawyers, III, 55.] In 1827, William Wirt was informed by Justice Thompson of the Supreme Court of the United States that "six, eight, and ten thousand dollars is considered great practice in New York and ten thousand dollars the _maximum_."[Footnote: Kennedy, "Memoirs of William Wirt,"

II, 209.] Thirty years later the same was true, except that twenty thousand dollars had then become the highest annual average, and that but of a very few.[Footnote: Parton, "Life of Aaron Burr," 153.] Daniel Webster earned from $12,000 to $20,000 when at the height of his career.[Footnote: Harvey, "Reminiscences of Daniel Webster," 84.]

The Civil War was the occasion of many important business enterprises, and gave rise to much litigation. It brought also a great increase of wealth to the North and West, and new and greater investments of Northern capital in the South. From that time the business of the leading lawyers in every State became more remunerative. Incomes of $20,000 and $25,000 were occasionally earned in the smaller States, and of four or five times as much in the larger ones.

The American lawyer of the eighteenth century was apt to have his office in his house. During the nineteenth century this became less and less common and is now comparatively rare. In cities certain streets, generally near the court-house, are crowded with lawyers' offices. These are generally over business stores, but in some places residential streets have been converted to this use, and what was formerly a handsome mansion will have the chambers of counsel on every floor.

In many of the counties in Virginia chambers for the accommodation of the lawyers are built in the rear of the court-house on public ground. A small rent is paid by the occupants to the county. When court is about to open each day the crier calls out from one of the court-house windows the name of each lawyer to notify him of the fact.

The relations of the bar to the bench a.s.sume a peculiar character under the conditions of American society. The judges stand closer to the lawyers in this country than in any other. All of them, unlike those of continental Europe, have been themselves practicing lawyers. The majority, unlike those of England, are young men, sitting in minor courts, who have generally left the bar for but a brief period, expecting, if not desiring, soon to return to it. Not a few hold court but one or two days in the week or one or two hours in the day, and for the rest of the time are actively engaged in professional practice before other courts. Those of the latter description always occupy a somewhat unfortunate position. The State does not expect them to devote themselves entirely to its service. It does not provide for their compensation on that basis. It expects them to continue the general practice of their profession, except so far as their judicial duties may necessarily prevent. They certainly cannot practice in their own court with propriety. Statutes to prevent it are not uncommon. For the same man to charge the jury one day as judge and address them the next in argument as counsel must tend to confuse their notions as to the weight they should give to what he says, and to lend it often a weight which it may not deserve. So, too, his relations to the clerk and other court officers are such officially as to give him opportunities for influencing them when he is engaged at the bar, not shared by his brother lawyers.[Footnote: French _v._ Waterbury, 72 Conn. Reports, 435; 44 Atlantic Reporter, 740.]

There are, however, in every State quite a number of judges of higher courts who receive a salary deemed sufficient for their support and who are expected to devote their entire time to judicial duties. As respects those of the United States courts there is a statute (U. S. Revised Statutes, Sec. 713) making it criminal for them to practice law. Similar legislation exists in some of the States with regard to the judges of their higher courts, but without it a sense of propriety dictates their abstaining from it, and it has even been held that the right of any judge of a superior trial court of general jurisdiction over important causes to act as an attorney or counsellor, except in his own cause, is suspended by implication of law so long as he retains his seat on the bench.[Footnote: Perry _v._ Bush, 45 Florida Reports; 35 Southern Reporter, 225.]

The demeanor of the judges to the bar is inevitably affected to some extent by their tenure of office. If they hold their places for life, they naturally are less sedulous to avoid giving offense and less ready to tolerate a poor or tedious argument. A greater distance is maintained for this cause between bench and bar in the federal courts than is usual in most of the State courts.

No judge, however, desires to have the reputation of being overbearing, rough or impatient, and few are. Chief Justice Parsons of Ma.s.sachusetts at one time fell into an inveterate habit on the circuit of checking counsel in argument rather curtly when they seemed to him to wander from the vital point.

The leaders of the bar of Boston finally determined to stop it, and arranged at the next term at which he was to preside that whoever of them was thus treated should leave the court room.

The first to address the court was checked in the usual manner, and observing that he regretted his argument seemed not worthy of the court's attention, took his papers and went out. The next met the same kind of interruption in the same way, and so on until the court room was cleared. The Chief Justice afterwards sought an explanation, received it in good part, and was forever cured of what had been a serious impediment to his usefulness on the bench.[Footnote: See George F. h.o.a.r, Autobiography, II, 397.]

Occasionally a trial judge will have a similar lesson taught him by finding no business to be disposed of when he opens court, and learning later that the bar agreed to the continuance of all pending cases, because they did not care to trust him with them, or were disinclined to submit to his manner of conducting a hearing.

Judges are universally desirous of securing the good opinion of the bar as respects their knowledge of law and powers of discrimination and a.n.a.lysis. The bar is their little world. It is a critical world, for in every case that is tried there will be one lawyer who is dissatisfied with the result, and likely to think the judge wrong rather than himself, if every proposition of law which he has a.s.serted has not been conceded.

It is much more common for American judges to be too tolerant of a waste of time by counsel than to be too impatient at it.[Footnote: See a striking instance of this tendency given in Cleveland, Painesville & Eastern R. R. Co. _v._ Pritschau, 69 Ohio State Reports, 438; 69 Eastern Reporter, 663.] They dislike even to seem harsh. Most of them also hold office only for a term of years and do not forget that undue severity may jeopardize their re-election. This is one reason for the fact that at all points the bar are subject to fewer restrictions upon their conduct in the trial of causes in American courts than in those of most other countries. Another, and a more fundamental one, is that the judges and lawyers stand more nearly on the same level both in public regard and official position. The lawyer holds a more permanent office in the court than the judge. He is quite likely to be his superior in learning and ability. He belongs to a cla.s.s that is influential in the community, and whose members usually share quite actively in the direction of party politics. The judge in most instances holds but a brief authority. He does not wish to parade it in such a manner as might seem offensive. He is in danger of seeming to parade it if he goes beyond what is necessary in regulating the conduct of the lawyers who may appear before him. The judge who keeps a rigid watch on the examination of witnesses to exclude all improper testimony, whether objection be made to it or not, declines to hear argument on matters that may appear to him too clear to justify it, and is impatient when argument on doubtful points is continued longer than he thinks worth while, may be respected, but he will never be popular. Trials for these reasons are longer in the United States than in England. Fewer summary rulings are made. More questionable evidence is admitted. More time is allowed to counsel in the argument of the cause, and more freedom in arguing points that may seem immaterial to the court.

The broad liberty of appeal generally allowed is another reason for hesitation on the part of trial judges to interfere more than seems absolutely necessary with the management of a cause by counsel. It is not merely the legal right of appeal but the practice under it which is a peculiar feature of our judicial system. A foreign lawyer often hesitates to cross swords with the judge. He distrusts his own judgment if it differs from that of the court. He defers to the opinion of the bench, not only as stating the law of the case, but as probably stating the law of the land. He therefore seldom appeals on minor points of procedure, even if he could. In the United States probably one case in ten of all that go to trial is carried up for review on points of law; many of them mere matters of practice not affecting the merits of the cause.

The American lawyer can also safely speak with freedom of the conduct of the government or of high officials should it come in question.

Those in any court, high or low, who hope for a reappointment know that the best way to obtain it is to secure the good will of the bar. The reputation of a judge depends on the opinion which the lawyers have of him. The general public may be deceived as to his character, ability and attainments; the bar cannot be.

In the public sessions of court there are few judges who are not impressed with the necessity of maintaining the dignity of their position as representing the power of the State. The lawyers recognize this feeling as just. It is common for them to rise as a body when the judge enters the bench. They find no difficulty in using the conventional style of address of "May it please the Court," or "May it please your Honor." When a ruling is made in the course of a trial the lawyer, whose client is adversely affected by it, accepts it without further discussion, simply reserving his exception, if he have one, for purposes of review in a higher court. If, in addressing the jury, counsel exceed the bounds of professional license in commenting on testimony or alluding to the character of the parties, the court will check them without hesitation.

Less outward respect was shown toward the courts by the bar in former times than now, and it often received less courtesy of treatment from the bench. An incident occurring in Ma.s.sachusetts about the beginning of the nineteenth century may serve as an ill.u.s.tration. Robert Treat Paine, a signer of the Declaration of Independence, resigned his seat on the bench of the Supreme Judicial Court in 1804, at the age of seventy, largely on account of deafness. Naturally somewhat imperious in temperament, his bearing toward the bar had seemed harsher from this infirmity.

Fisher Ames used to refer to him as _Ursa Major_, and once told a friend that he should not go into court again, when Judge Paine held it, without a club in one hand and a speaking trumpet in the other. Theophilus Parsons, not long afterwards made Chief Justice of the State, was arguing before him one day when the judge, under the misconception into which a deaf old person so easily falls, that the younger generation all speak hurriedly and indistinctly, cried out, "Mr. Parsons, I tell you once for all, take that glove off your tongue." "Certainly, Sir," was the quick retort, "and may I beg your honor to take the wool out of your ears?"[Footnote: "Memoir of Theophilus Parsons," 214.]

Some twenty years later Roger Minott Sherman, the leader of the Connecticut bar, in trying a cause before an empty-headed judge who had been put on the bench for no other apparent reason than that his father was a man of distinction, quoted several English authorities and was about to read from another when the judge remarked that he need not take the trouble to read anything more of that sort to him. "Then," said Mr. Sherman, "with your Honor's permission I will read from it to the jury, and let me say that it is an opinion of Lord Ellenborough, a Chief Justice of England who rose to the bench by his own merits, and shone by no reflected light."