Ethics in Service

by William H. Taft

In his interesting history of the American Bar, Mr. Charles Warren, of the Boston Bar, says:

"Lawyers, as the instruments through which the subtleties and iniquities of the Common Law were enforced, were highly unpopular as a class in England during the period of Cromwell and Milton."

Milton 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."

As examples of a lawyer's reputation in London in the seventeenth century, Mr. Warren cites the titles of the following tracts printed at that time: "The Downfall of Unjust Lawyers"; "Doomsday Drawing Near with Thunder and Lightning for Lawyers"; "A Rod for Lawyers who are Hereby declared Robbers and Deceivers of the Nation"; "Essay where is Described the Lawyers, Smugglers and Officers Frauds."

I note these facts as I progress to indicate and reinforce my original statement that the present time is not the only time in the history of civilization when lawyers have received the condemnation of their fellow subjects or fellow citizens. Yet not only has the profession survived such movements but its usefulness has been recognized in succeeding crises.

I need hardly mention that most of the progress toward individual liberty in English history was made through the successful struggle of the lawyers against the assertion of the divine right of Kings and through the defence of privilege by members of our profession. Lawyers like Lord Coke and Lord Hale stand out in the profession for their maintenance of the independence of the judiciary and their support of the liberties of subjects. The great charters, the Petition of Right, the Habeas Corpus Act, the Bill of Rights, and the Acts of Settlement, establishing the judiciary independent of Royal control, were obtained at the instance of lawyers who knew better than any other class the absolute necessity for such reforms in the maintenance of free institutions.

The evolution of the Bar in this country during colonial times—especially in New England—was a curious counterpart of the history of the English Bar three centuries before. The founders of New England came here to escape a persecution for their religious beliefs and law was closely connected in their minds with the injustices, the inequalities and the rigid hardships of the common law as administered by judges appointed and removable at the will of the Tudors and Stuarts. At that time lawyers exercising their profession were the instruments of a system that had become non-progressive. They had lost the principles of justice in technicalities and had become mere political tools in the hands of tyrants. But in England, the law soon lost its narrowing, hard and inflexible character through the intervention of courts of equity and through the genius and broad views of great judges of common law like Mansfield. It was modified further by the civil law and by the needs of a developing world commerce, and after the action of the Long Parliament and the Revolution it was no longer used as an instrument of tyranny.

In this country, however, the Puritans and the Pilgrims approved of neither the common law nor the English judicial system, and as lawyers were only part of that system, they considered the abolition of the profession from their society as an end devoutly to be wished for and promptly sought. Among the Pilgrim fathers there was not a single lawyer, while among the Puritans there were only four or five who had been educated as lawyers and even they had never practiced. The consequence was that during the seventeenth century and far into the eighteenth, lawyers had little place in the social or political institutions of the colonies. In New England there was a theocracy. The judges—none of them lawyers—were all either ministers or directly under the influence of the clergy. A colonial common law grew up among them, based on a theological reasoning and was really administered without lawyers. In the Massachusetts body of liberties, it was provided that a man unfit to plead might employ a person not objectionable to the Court to plead for him, on condition that he give him no fee or reward. In 1663 a usual or common attorney was prohibited from sitting in the general court.

As society progressed, however, as commerce and trade increased, as wealth grew, as business transactions became more extended and as learning spread from the clergy to other persons, opportunity and inducement were furnished for the study of the law, and professional training became more general. The crying need for a learned and honorable profession of the law was made manifest by the growth of a class of advocates and advisers whose influence was most pernicious. Litigants needed guidance in the presentation of their cases and no learned profession being available, the underbailiffs, undersheriffs, clerks and other underlings of the administration of justice began to practice, without real knowledge. Greedy and lacking in principle, they developed trickery and stirred up litigation for their own profit, just as their predecessors had done three hundred years before in England. Colonial statutes were then passed, forbidding such underlings of the court to practice law at all. But lawyers were not popular in colonial days even after the Bar became able and respectable. In fact a bitter spirit was manifested against lawyers even as late as Shays's Rebellion after the Revolutionary War.