time of its passage, and counsellers and barristers at law were excepted from the operation of the act. Some trite provisions in 1734, 36 and 38, which come next in order, are omitted. In 1742, so much of the law of 1732, as applied to regulating attorneys and granting them licenses was repealed, not having "been found to answer the good design and intention thereof." * The same year, lawyers' fees were fixed by law, and a new oath prescribed: viz.

"You shall not directly or indirectly exact, de

might be claimed without any pre-agreement with the client. If any attorney refused to plead a cause for these fees, he was to forfeit to the party aggrieved the amount of the fee according to the court; but any one capable" was allowed to plead his own cases in any court; a privilege enjoyed to this day, but rarely exercised. If he were indeed "capable," he might escape the force of the adage that he who pleads his own cause, has a fool for his client" but how this question of fitness was to be decided, we are not informed. Many, the least capable, might imagine themselves so, and especi-mand, or receive, any greater or larger fee or really after the anti-lawyer system, which had so ward, or other gratuity whatsoever for the services long prevailed and accustomed men to regard them- by you to be done as an attorney of this court, than selves and one another as good-enough counsel. you are permitted to take by a certain act of AsBut in two years, the balance turned and down went sembly, intituled, an act to prevent lawyers exactthe lawyers the above statute was repealed. * ing or receiving exorbitant fees, during the continuance of the said act. So help you God." Without taking this oath, no lawyer could practise in any court, under a penalty of 500 pounds current money. t

From this time to 1718, about 36 years, our printed "statutes at large" contain nothing relating to lawyers; but some unimportant regulations then, and also in 1727, (1st George II.,) as to fees, &c., render it probable that some intermediate legislation respecting them has been lost. Passing some unimportant items, we find in 1732, a long and significant act, "to prevent frivolous and vexatious suits; and to regulate attorneys practising in the county courts." †

66

In 1745, the law for regulating attorneys and granting them licenses was revived and altered, ‡ so that it became the basis of subsequent legisla tion on the subject for many years; and no doubt from this period the colonial bar began to assume much of that dignity and importance which now It charges boldly into the number of unskilful belong to the profession. The details of the law, attorneys in the county courts, who have become however, will be reserved until we coine to the a great grievance to the country, in respect of their year 1748, when it was re-enacted with amendneglect and mismanagement of their clients' cau-ments. In the meantime, nothing of consequence ses, and other foul practises;" and enacts that no took place in reference to our subject. one shall practise in those courts without a license from the governor and council, under a penalty of 40s. for every case undertaken: License to be obtained by petition to the governor and council, who should refer it to suitable persons to examine the candidate. If qualified, he was then to be licensed; but was to subscribe the oath of abjuration and the test, and also to take the following remarkable oath :

•You shall do no falsehood, nor consent to any to be done in the court; and if you know of any to be done, you shall give notice thereof to the justices of the court, that it may be reformed: You shall delay no man for lucre or malice, nor take any unreasonable fees: You shall not wittingly or willingly sue, or procure to be sued, any false suit, nor give aid nor consent to the same, upon pain of being disabled to practise as an attorney forever. And furthermore, you shall use yourself in the of fice of an attorney within the court according to your learning and discretion. So help you God." For violation of duty as laid down in this law, the governor and council could suspend an attorney, or disable him forever; and the courts could make him pay all costs occasioned by his wilful neglect. Practitioners in the general court at the

* Hening, ii. 498.
+ Hening, iv. 357-362.

The disposition to "regulate" attorneys still prevailed, and in 1748, (22d George II.) a lengthy statute was passed, containing the following provisions: Examiners from among the Council and lawyers skilled in the law were to be appointed by the General Court, who should be sworn to grant no license except to persons of undoubted capacity, ability, and fitness; and who were to receive from every candidate the fee of twenty shillings: the candidates were to produce to the examiners a certificate of their honesty, probity, and good demeanor, from some inferior court; and, if qualified, to receive a license under the hands and seals of the examiners. If the persons appointed examiners refused to be sworn, granted a license improperly, or charged more than the legal fee, each forfeited for every such offence one hundred pounds, half to the king, for the better support of the colonial government; the other half to the informer: licensed attorneys were to subscribe the oath of abjuration and the test, take oath in every court in which they practised to demean themselves truly and honestly; and if any attempted to plead without license or without duly qualifying himself in court, he forfeited five pounds for every cause so *Hening, v. 171.

+ Hening, v. 181-2.
Hening v. 345-350.

=

*

undertaken convicts for felony were incapable of tinued; but the penalty for violating it was increasobtaining license, and should any such obtain a li-ed to one hundred pounds; and if any lawyer cense, the general court were to supersede it: the brought suit for his fees, he could recover only the same court could also suspend or disable "without legal amount notwithstanding any agreement he the solemnity of a jury" any attorneys who misde- might make with his client to the contrary. This meaned themselves: the county courts still to have quasi anti-law-usury provision may enable us to power to fine attorneys for contempt, &c., to bind remove an ambiguity in the phraseology of the them to good behavior and force them to pay costs act, which in two places uses the following lanoccasioned by their neglect: "to prevent frivolous guage: lawyers shall not directly or indirectly, by suits in the general courts, and trifling and vexa- any device whatsoever, take, or demand, "before tious appeals from the inferior courts," no attor- the suits in which they shall be employed shall be ney during the time of his practising in the general finally determined," any greater fees than those court, could undertake a case in the inferior courts, specified. Does this mean, that after the suits with some specified exceptions, under a penalty of are decided they may take larger fees, which actwenty pounds, for every such case, though he cords best with the precise phraseology? Or that might finish his cases then depending; no more they shall not receive even their legal fees until than two lawyers to argue on a side, in the gen- the services are rendered? The clause in refereral court, except in cases of life and death: this ence to the recovery of their fees by suit, seems to act repealing all former acts, to continue in force confirm this latter construction, as it denies a legal for four years, and to the end of the next session sanction to greater fees than those specified. The thereafter. above phraseology is still preserved in our laws In 1753, the laws establishing the general court regulating fees; but by a recent statute now in opwere reduced into one; and it was enacted, that if eration, a lawyer is authorized to make special an attorney failed to enter an appearance in it, after contracts for fees with his clients without any limit engaging so to do, he should forfeit to the plaintiff as to the amount; and most of the fees usually refifty shillings at the same time, this sum was ceived exceed the legal rates which are taxed in fixed as the fee in the general court, to be taxed in the bills of costs. † the bill of costs, if the plaintiff employed counsel; or in lieu of this sum, five hundred pounds of tobacco, at the option of the defendant. ‡

In 1761, (1st George III.,) these regulations which were established from 1748, were, with a few slight differences, re-enacted in one statute, repealing all others, and to continue in force for five years, and from thence to the close of the

seded any attorney's license for misdemeaning himself, they could permit him to resume practice under his former license: the restriction as to practising in both courts was renewed, except as to barristers at law and some of the penalties for violating the act were increased.

The law of 1748 was "found to answer the ends thereby intended," and when about to expire (1753,) was continued for three years, and to the end of next session. When the general court had superthe next session thereafter. And for preventing lawyers taking unreasonable and exorbitant fees, and for the more equal settlement of the same," it was enacted that counsel in the general court might receive, for advice when no suit was brought, £1 1s. 6d. ; for any suit at common law, other than those below specified, 50s.; for "all chancery We have passed by some regulations of the assuits, or real, mixt, or personal actions, where the sembly in regard to taxing lawyers' fees in certain title or bounds of land shall or may come in ques-cases, in the bills of costs. In 1765, (the 6th tion," £5. County court attorneys, for similar George III.,) a more general law was passed on services, were to receive 10s., 15s., and 30s. respectively; and on a petition for a small debt, 7s. 6d. Any lawyer for attending a survey in the county was to receive, for every day, 1£ is. 6d. The penalty for exceeding these fees was fifty pounds, for every instance. §

this subject. Reciting former laws touching fees and the establishing of the general court, and declaring it "unreasonable that the party who prevails, and recovers in any such action or suit, should be subject to the payment of a greater fee to his lawyer than he can by law recover of the adThis law seems to have worked well again; and verse party," it requires the fees already specified when the period limited was about to expire, it was to be taxed in the hills of costs, "except against again continued, with some amendments, for four executors and administrators, or where the plainyears, and to the end of the session thereafter. tiff may not recover more costs than damages." § The prohibition that lawyers practising in the At the present day, as above stated, few plaintiffs general court should not plead in the inferior courts recover as much as they have to pay their lawwas removed. The above tariff of fees was con-yers, though the legal fees are taxed in the bill of

The general law "regulating" attorneys, still vide some method of preserving peace and security worked so well, that in 1766, it was continued, un- to the community in the mean time;" and among altered, for three years and one session; and in other things, enacts that the common law of Eng1769, for the space of seven years and one session land and all her general statutes made in aid thereof, after. * prior to the 4th year of the reign of James I., together with the acts of the colonial assembly then in force, so far as they may consist with the ordinances, declarations and resolutions of the general convention, shall be in full force, until altered by the legislature.

The stirring era of the revolution was now near at hand. Already were many of the causes in full operation, which led the "delegates and representatives of the several counties and corporations of Virginia," on the 29th of June, 1776, to declare, that by the numerous acts of misrule, which they then enumerated, and which were afterwards ject of courts, &c. In 1777 and '78, there was recited in the celebrated Declaration of Indepen- some legislation in reference to attorneys failing to dence, "the government of this country, as for- enter an appearance, and to taxing their fees in the merly exercised under the crown of Great Britain bills of costs;-that of the year '78 reviving and was TOTALLY DISSOLVED." + continuing the above law so long in force-from 1748-but with the material alteration of raising the fees, and allowing a fee of ten pounds in the

The most solemn interests of a free people for several years demanded the attention of the legislature and the convention. A new system had in" high court of chancery."†

a great measure to be put in operation, and the old And then, the statute book seems silent as to atalso modified to suit new circumstances and emer-torneys, till 1782, except as to the salary of the gencies.

unless it was shown that no attorney did appear,
&c. Physicians, surgeons and apothecaries were
also pretty well taxed. In 1790, the taxes on them
all were repealed.

they operated. And on the other hand, a people jealous of their rights and impatient of the least appearance of extortion, may sometimes have done the lawyers injustice. But even supposing all the

In 1785 and '87, the laws indicate two species legislative denunciations against them fully merited, of neglect not very creditable to those guilty of them, viz., suffering suits to be dismissed by their negligence, which was to be done at their costs: and failing to pay over clients' money; they were now to be compelled to pay in a summary way, on motion. †

the spirit which exacted such fair and high-minded demeanor from the Bar, must have tended to elevate its tone and purify its ranks. Till at length the Virginia Bar was not unworthy of the Randolphs, the Wythes, the Tazewells, the Pendletons, the Wirts, the Wickhams and the Marshall, who have adorned it.

APPENDIX.

Since the above was written, we have found in a MS. Book, in Latin and Greek, belonging to the “Virginia His torical Society," the following sketches of two of our Colonial lawyers, which are so illustrative of the foregoing paper, that we make no excuse for adding them. The MS. book, in the end of which they appear, contains notes on Homer's Iliad, with a translation of many of the Greek terms into Latin. The sketches are probably by Sir John He died about 1737 at the age of 44 years, Randolph, highly distinguished as a lawyer and a scholar. and a handsome tablet to his memory is embedded in the walls of the chapel of William and Mary College: the inscription upon already appeared in the Messenger.

it has

In 1786, it was enacted that no person, but the attorney general, should practise as attorney or proctor in any court, unless licensed as heretofore described, or by three of the judges of the high court of chancery, or of the general court, in writing under their hands and seals; but the candidate must bring them a certificate from the court of the county, in which he had resided for the last twelve months, of his honest demeanor: no one convicted of felony to practise law. If the general court by their own observation detected any mal-practice, or complaint in writing were made to them of any such mal-practice in any attorney, the accused was to be summoned to show cause why an information should not be filed against him; and if on such information, he were found guilty, they could sus pend his license or vacate it altogether, in that court or any county, city or borough court. high court of chancery and the court of admiralty had the same powers in reference to those courts of a Fit John Holloway Esqr. after having lanrespectively. Counsel in the inferior courts were guished about ten months with a sort of Epilepsie not allowed to practise in the higher ones. But at certain Times of the Moon, which had much this restriction was soon after (1787) removed; impaired his Memory and understanding. but counsel having appeared for the appellant in the court below, were not to prosecute the appeal. This exception or proviso was probably disregarded; for in 1788, it was re-enacted, and a penalty that I have upon many Occasions known him preof twenty pounds denounced against whomever should appear for the same party in both courts, in the same cause. ‡

The

Under these regulations slightly altered to this day, the profession has moved on for more than half a century, drawing to its ranks many bright ornaments; often the brightest of the state and the Union.

Even when the enactments were most severe. in the time of the colony, against the avaricious and corrupt spirit of attorneys, there were no doubt many shining exceptions and lofty exemplars among the colonial Bar. Indeed, the existence of such laws shows the prevalence of a high standard of honorable dealing, and a popular sentiment requiring strict integrity in professional matters, which were well calculated, in the lapse of time, to produce the most gratifying effects in those upon whom

Hening, xii., 285.

+ Ibid. 36, 472.

‡ Hening, xii., 339, 497, 708.

VOL. XIII-78

"Taken from Sr. John's Breviate Book.

"On the 14th of December 1734 Died suddenly

He had

:

practised in this Court upwards of thirty Years with great Reputation for Diligence and Learning and was so much in the good Opinion of the Court,

vail for his Clients against Reasons and Arguments much stronger and better than his. His Opinions were by most People looked upon as decisive, and were very frequently acquiesced in by both Parties, those against whom he pronounced, being discouraged from disputing against so great Authority. He practiced with much Artifice and Cunning, being thoroughly skilled in Attornyship; But when his Causes came to a Hearing, he reason'd little was tedious in reading long Reports of some Cases, and little Abridgments of others out of which he would collect short Aphorisms, and obiter sayings of Judges and rely upon them, without regarding the main Point in Question; and arbitrarily affirm or deny a Matter of Law, which had often too much Weight against the Reason and Difference of things. By this Method he gained many Causes which always gave him great Joy, but was as impatient if he lost one as if it tended to a diminution of his Credit. He was blamable for one singular Practice, in Drawing notes for special Verdicts; he would state naked Circum

"In a few Daies afterwards in London died William Hopkins Esqr. who had practiced in this Court about 12 Years, and in that Time by hard Study, and Observation he made a surprizing Progress ; became a very ingenious Lawyer and a good Pleader; tho' at his first coming he was raw and much despised. But he had a Carelessness in his Nature, which preserved him from being discouraged, and carried him on till he came to be admired. He had a good Foundation in School Learning, understood Latin and French well; had a strong Memory, a good Judgment; a Quickness that was very visible; and a handsome Person, All mighty Advantages. But his manner was awkward, his Temper Sower, if it was to be judged by the Action of his Muscles; and was too much given to laugh at his own Discourses.

stances of Facts only, and leave it to the Court to offices. One of his greatest Defects was that he collect the Matter of Fact out of them; so that would always bring his opinion and Friendship to upon such Verdicts we have had many tedious agree. But what he wanted in Virtue and LearnDebates about what the Fact was: Whereas if ing to recommend him was abundantly supplied by that had been found positively as it should be there fortunate Accidents. He was 14 years Speaker of would have been no Need of a Special Verdict: the House of Burgesses and 11 years Public TreaBut against this I could never prevail. His great-surer; But in those he acted with little Applause est Excellence was his Diligence and Industry; and less Abilities, tho he was three times chosen but for Learning I never thought he had any, nor and once unanimously. His Management of the could it be expected he should; He had served a Treasury contributed to his Ruin, and brought him Clerkship; went a youth afterwards into the Army to the Grave with much Disgrace. I was always his in Ireland in the Beginning of King Wm's reign; Friend, and had a great deal of Reason to believe after that betook himself to Business having got to him mine. Yet it was impossible to be blind to so be one of the Attorneys of the Marshalsea Court; many Imperfections: He died little lamented in the but not being contented with his income from that, 69th year of his age." turn'd Projector and ruined himself; which brought him first into Maryland and afterwards hither. I remember one particular Instance which satisfied me his knowledge in the Law was not very profound. An ejectment was brought (whether I was at first concerned in it I forget,) and upon a Special Verdict the Case was thus. A seised in Fee by Deed, gave the Land in Question to B his Daughter for Life and after her Death to her Heirs forever; she sold to the Deft. and after her Death the Plt. B's Heir claiming as a Purchaser in Remainder brought this Action to recover. When I saw this I told the Plt. who was my Client, I could not say one word for him; not knowing a more certain Rule of Law than this: That where by Will or Conveyance any Estate of Freehold is given to the Ancestor and by the same Writing an Estate is limited to his Heirs; that makes a Fee [Heirs] being there a word of Limitation and not of Purchase. Yet the Deft. by this Eminent Lawyer's advice gave up the Land without Argument, upon the Plt's allowing him to remain in Possession some short Time longer: when if the matter had been brought to a hearing, I would not have said one word. However, his reputation was such, that he was universally courted, and most people thought themselves obliged to him, if he would engage their side upon any terms; and he really thought so himself. This gave him great opportunities of exacting excessive Fees; which I have heard he always did, where the Value of the thing in Question would allow it and covered great Blemishes in one part of his private Life besides many Imperfections of his Mind, which any Body might observe who knew any thing of him: He was of a haughty, insolent nature; passionate and peevish to the last Degree; He had a Stiffness in his Carriage which was ridiculous and often offensive; and was an utter Stranger to Hospitality. He was sincere in his Friendship where he professed any, but not constant, apt to change upon small provocations, and to contract new Friendships upon very slight Grounds. In which he would be very warm and ready to do all good

When he had brought himself into good Business, he almost totally neglected it; which I believe was owing to a Desire of Dipping into all Kinds of Knowledge; wherein he had a great Deal of Vanity, and prevented his Digesting what he had, so well as he would have done otherwise. He had many good Qualities in his Practice; was moderate in his Fees; Ingenious and honest; never disputed plain Points, but was a candid fair Arguer. Yet he had a failing which brought him to a Quarrel with me. It was an odd Sort of Pride that would not suffer him to keep an Equilibrium in his own Conceits: He could not see himself admired, without thinking it an Injury to him to stand upon a level with any other. And therefore tho' I was always his Friend, had done him many Kindnesses, and he himself thought himself obliged to me, He came into so ill a Temper, as not to allow me either Learning or Honesty; which broke our acquaintance and after that I thought I discovered some Seeds of Malice in him. He died in the Flower of his Age, and may be justly reckon'd a Loss to this poor Country, which is not like to abound (at present at least) in Great Genius's."