« SebelumnyaLanjutkan »
attorneys or lawyers of this province either to speak for him or to be silent in court, in order to deprive the petitioners of all advice in law."1 Upon examining the petitioners in the council David Lloyd was declared “the principal agent and contriver of the whole," and steps were taken to protect the purchasers. The case is reported in Pennypacker's Colonial Cases with an account by Pastorius of the whole curious transaction.2
In Lyle v. Richards3 Chief Justice Tilghman remarks that there were few lawyers of eminence in the province prior to Tench Francis, although there were never wanting strong minds well able to conduct the business of the courts, and the fact that the leading lawyers of the following generation received their training in the Inns of Court led them perhaps to look down on their predecessors, some of whom were in extensive practice that included the neighboring colonies. Disparaging remarks by contemporaries are not infrequent. Secretary Richard Peters, writing in 1749 to the proprietors says of the bar in general: “All of whom except Francis and Moland are persons of no knowledge, and, I had almost said, of no principle."'4 One name, however, stands at the head of the early bar, that of the brilliant Andrew Hamilton. The history of Hamilton is worth
1 II Colonial Records, 447, March 1, 1708–9.
2 Heather v. Frankfort Co., Pennypacker's Colonial Cases, 142; II Colonial Records, 447, March 1, 1708–9. That the "cornering” of the bar was not a new experiment would appear from an incident mentioned by Barrington in his “Observations on the Statutes," page 294n. “There is also a petition of Robert Pickerell, exhibited to the king in parliament the second year of Richard the Second; by which he complains that Alice Perrers had retained all the advocates in Westminster Hall, so that he could have no advice; 'si il ne donneroit si grande summe d'or, quil ne poit attainder.'
3 9 Sergeant & Rawle's Reports, 322 (1823).
noting, as he is the only American lawyer of his generation that enjoyed an international reputation. A native of Scotland, he first taught school and then practiced law in Maryland, from whence he removed to Philadelphia, about 1715, having been retained to represent the proprietary interests. In 1717 he became attorneygeneral and was active in the litigation over the Maryland boundary. He also appeared in the high court of chancery for the young proprietors, in the contest over Penn's will, having been called to the English bar in 1712. The most interesting personal episode in his career was the part he took in the erection of Independence Hall, which was built from plans prepared by him and under his personal supervision. To the legal profession he is best known for his brilliant and successful defense of the printer, Peter Zenger, tried for seditious libel, a case of real historical importance as well as contemporary interest.
interest. In this case, tried in the supreme court of New York in 1735, Hamilton, after the court had refused his offer to prove the truth of the statements alleged to be libelous, carried the jury against the instructions of the court and obtained the defendant's acquittal by a bold address in which the liberty of the press was asserted with unprecedented vigor. The doctrines which he advanced, regarded as unsound at the time, have since become indelibly impressed upon English and American law, and the trial deserves careful reading on account of the light that it throws on contemporary political conditions and the effect that it had on the law of libel.2 On the other hand, the
1 VII Pennsylvania Archives (2d Series), 94. See sketch of his life in Vol. I, Lewis's Great American Lawyers (1907), 1.
2 Howell's State Trials, Vol. 17, 575. In Pennsylvania the quarter sessions of Philadelphia had in 1692 allowed the question of the seditious character of a publication to go to the jury. Proprietor v. Bradford, Pennypacker's Colonial Cases, 117.
part played by Hamilton in the suppression of the court of chancery shows a willingness to sacrifice the science of jurisprudence to the exigencies of politics, characteristic of his time, but not in keeping with the best professional traditions. Tench Francis, the next bar leader of distinction, enjoyed a greater reputation with his successors in the post-Revolutionary period, and is praised by those whose learning entitled them to speak with authority.'
As the century advanced it became the general custom, for those who could afford it, to send their sons to be educated in the law at the Inns of Court. This was more prevalent in the Southern and Middle than in the New England colonies. From 1760 to the end of the Revolution there were more than one hundred American students of law in London, of whom forty-seven were from South Carolina, twenty-one from Virginia, sixteen from Maryland, eleven from Pennsylvania, five from New York and the rest from the other colonies, no other colony than those named having more than two students. Many of these men attained great distinction in professional and public life. Among those from Pennsylvania were Chief Justices Benjamin Chew, Thomas McKean, Edward Shippen and William Tilghman; Justice Jasper Yeates; Presidents of the Supreme Executive Council, Joseph Reed and John Dickinson; as well as such distinguished lawyers and citizens as Nicholas Waln, Edward and Richard Tilghman, William Rawle, Jared Ingersoll and Peter Markoe. It is not to be supposed that the education afforded by the Inns of Court corresponded to that given in a modern law school. Everything depended on the diligence of the
1 It is a curious fact that a number of the bar leaders came from Maryland to Pennsylvania—Andrew Hamilton, Tench Francis, Benjamin Chew and the Tilghmans.
2 Life and Times of John Dickinson, 28.
student himself, and admission as a barrister came in due course after eating the required number of dinners regularly during the appointed terms. But the atmosphere and associations were conducive to study, while inspiration was to be drawn from the courts at Westminster, where the student attended and took notes of the arguments and decisions. Such notebooks were, in those days of scanty reporting, the treasured possessions of lawyer and judge and carefully consulted in the preparation of important arguments and decisions. In Clayton v. Clayton,' the manuscript notes of one of these students were cited in the supreme court of Pennsylvania. The case was one involving the question as to whether certain devisees under a will took an estate in fee or for life, there being no words of inheritance, but a direction to divide. Mansfield's decision in Wigfall v. Brydon,? was cited in favor of a fee. It being difficult to reconcile this decision with other authorities, the case was explained as turning on a direction to sell and divide, which appeared from the manuscript notes of the case of Goodright v. Patch, decided in the King's Bench, June 20, 1773, taken by Edward Tilghman while a student at law. So, too, in the political capital of the kingdom, the student studied the conflicting doctrines of the Tory and the Whig and prepared his mind for the momentous changes about to occur in his home across the sea.
Those who could not go abroad for a legal education served a clerkship in the office of a practitioner in the courts. Just what were the qualifications for admission do not seem to be recorded. At the earliest period sufficient assurance seems to have been all that was required, but, as the legal fraternity became better
13 Binney's Reports, 476 (1811).
organized, it may be presumed that the courts gave more consideration to the fitness of applicants. In 1759 the supreme court made an order
"That for the future no persons be admitted attorneys or council of this court without being previously examined as to their qualifications to practice, nor without having taken the oaths or affirmations of allegiance to his Majesty and subscribed the usual Declaration."1
At September term, 1760, Mr. Chew and Mr. Ross were appointed to examine an applicant and at April term, 1761, Francis Hopkinson was examined by Mr. Ross and Mr. Dickinson. Later admissions do not recite an examination, and, perhaps, this duty was delegated to the local bar, but the fact that there are no common pleas dockets for Philadelphia County on file prior to the Revolution renders the subject obscure. From the few minute books of the Philadelphia common pleas that have escaped destruction we find that by 1790 it was the established practice for a member of the bar to move in open court for the admission of the candidate. The court would then appoint a special committee of three members of the bar to conduct the examination, and, if the result was favorable to the applicant, he was admitted and sworn.?
Prior to the Revolution the path of the law student was made easier by the publication of Blackstone's Commentaries, a work that was said by Edmund Burke to have had a larger sale in America than in England, a statement that would seem to be justified, for hardly had the first complete edition appeared in England before an American edition was printed at Philadelphia (1771) of which about fourteen hundred copies were
April Term, 1759, Supreme Court Docket No. 3, page 83. 2 Minute Book, Court of Common Pleas, Philadelphia County, March Term, 1790.