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might be claimed without any pre-agreement with frime of its passage, and counsellers and barristers at the client. If any attorney refused to plead a law were excepted from the operation of the act. cause for these fees, he was to forfeit to the party Some trite provisions in 1734, 36 and 38, which aggrieved the amount of the fee according to the come next in order, are omitted. In 1742, so much court ; but any one “capable” was allowed to plead of the law of 1732, as applied to regulating attorhis own cases in any court ; a privilege enjoyed 10 neys and granting them licenses was repealed, not this day, but rarely exercised. If he were indeed having " been found to answer the good design and "capable,” he might escape the force of the adage intention thereof." * The same year, lawyers' that "he who pleads his own cause, has a fool for fees were fixed by law, and a new oath prescribed : his client;" but how this question of fitness was 10 viz.be decided, we are not informed. Many, the least “ You shall not directly or indirectly exact, decapable, 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the balance turned and down went sembly, intituled, an act to prevent lawyers eractthe lawyers : the above statute was repealed. * ing or receiving exorbitant fees, during the contin
From this time to 1718, about 36 years, our uance of the said act. So help you God.” Withprinted "statutes at large” contain nothing relating out taking this oath, no lawyer could practise in io lawyers ; but some unimportant regulations then, any court, under a penalty of 500 pounds current and also in 1727, (1st George II.,) as to fees, &c., money. + render it probable that some intermediate legisla In 1745, the law for regulating attorneys and tion respecting them has been lost. Passing some granting them licenses was revived and altered, 1 unimportant items, we find in 1732, a long and so that it became the basis of subsequent legislasignificant act, " to prevent frivolous and vexatious tion on the subject for many years; and no doubt suits; and to regulate attorneys practising in the from this period the colonial bar began to assume county courts." +
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 amend. neglect 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 conrts without a license The disposition to “regulate” attorneys still prefrom the governor and council, under a penalty of vailed, and in 1748, (22d George II.) a lengthy 40s. for every case undertaken : License to be ob- statute was passed, containing the following protained by petition to the governor and council, who visions : Examiners from among the Council and should refer it to suitable persons to examine the lawyers skilled in the law were to be appointed by candidate. If qualified, he was then to be licensed; the General Court, who should be sworn to grant but was to subscribe the oath of abjuration and the no license except to persons of undoubted capacitest, and also to take the following remarkable ty, ability, and fitness; and who were to receive oath :
from every candidate the fee of twenty shillings: " You shall do no falsehood, nor consent to any the candidates were to produce to the examiners a to be done in the court; and if you know of any to certificate of their honesty, probity, and good debe done, you shall give notice thereof to the jus- meanor, from some inferior court; and, if qualified, lices of the court, that it may be reformed : You to receive a license under the hands and seals of shall delay no man for lucre or malice, nor take the examiners. If the persons appointed examinany unreasonable fees : You shall not wittingly or ers refused to be sworn, granted a license impropwillingly sue, or procure to be sued, any false suit, erly, or charged more than the legal fee, each fornor give aid nor consent to the same, upon pain of feited for every such offence one hundred pounds, being disabled to practise as an attorney forever. half to the king, for the better support of the coAnd furthermore, you shall use yourself in the of- lonial government; the other half to the informer : fice of an attorney within the court according to licensed attorneys were to subscribe the oath of your learning and discretion. So help you God." abjaration and the test, take oath in every court
For violation of duty as laid down in this law, in which they practised to demean themselves truly the governor and council could suspend an attor- and honestly; and if any attempted to plead withney, or disable him forever ; and the courts could out license or without duly qualifying himself in make him pay all costs occasioned by his wilful court, he forfeited five pounds for every cause so neglect. Practitioners in the general court at the
* Hening, v. 171. * Hening, ij. 498.
+ Hening, v. 181-2. + Hening, iv. 357-362.
I 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 lined 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" withont 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 negleci : "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. t the bill of costs, if the plaintiff employed counsel ; In 1761, (1st George IJI.,) these regulations or in lieu of this sum, five hundred pounds of to- which were established from 1748, were, with bacco, at the option of the defendant. I
a few slight differences, re-enacted in one statute, I The law of 1748 was found 10 answer the ends repealing all others, and to continue in force for thereby intended,” and when about to expire (1753,) five years, and from thence to the close of the was continued for three years, and to the end of next session. When the general court had superthe next session thereafter. And for preventing seded any attorney's license for misdemeaning himlawyers taking unreasonable and exorbitant fees, self, they could permit him to resume practice under and for the more equal settlement of the same,” it his former license : the restriction as to practising was enacted that counsel in the general court might in both courts was renewed, except as to barristers receive, for advice when no suit was brought, £1 at law: and some of the penalties for violating the 18. 6d. ; for any suit at common law, other than act were increased. 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 108., 15., and 30s. res- this subject. Reciting former laws touching fees pectively; and on a petition for a small debt, 78. and the establishing of the general court, and de6d. Any lawyer for attending a survey in the claring it "unreasonable that the party who precounty was to receive, for every day, 1£ 18. 6d. vails, and recovers in any such action or suit, should The penalty for exceeding these fees was fifty be subject to the payment of a greater fee to his pounds, for every instance. S
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." ģ
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
* Hening, vi. 140—3. + Ibid, 331.
Ibid, vi. 336.
* Ibid vii.-124-5.
The general law “regulating" altorneys, still vide some method of preserving peace and security worked so well, that in 1766, it was continued, on-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., The stirring era of the revolution was now near together with the acts of the colonial assembly at hand. Already were many of the causes in full then in force, so far as they may consist with the operation, which led the “ delegates and repre-ordinances, declarations and resolutions of the sentatives of the several counties and corporations general convention, shall be in full sorce, until alof Virginia," on the 29th of June, 1776, to de- tered by the legislature. clare, that by the numerous acts of misrule, which Nor was the new Constitution silent on the subthey then enumerated, and which were asterwards 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 10 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 The most solemn interests of a free people for 1748—but with the material alteration of raising several years demanded the attention of the legis. the sees, and allowing a fee of ien pounds in the lature 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 lo atalso modified to suit new circumstances and emer-orneys, till 1782, except as to the salary of the gencies.
attorney general, which was fixed successively, at A convention of the colony was held in Wil- £1,200 ; £2,400; 20,000 lbs. of Tobacco, paid for liamsburg, the capital, 1st August, 1774; and quarterly in money, according to the valuation of another in “ Richmond town," in March, July and the grand jury, at the preceding term of the geneDecember, 1775. An “ Interregnum" of about a ral court; and £300, in specie, per annum. year took place ; George III. was dethroned in the In 1782, so much of the act of 1765, specifying “Ancient Dominion ;" and the colonial government lawyers' sees and allowing them to be taxed in the dissolved. On the 12th of June, 1776, “The bill of costs, as had been repealed by the act of representatives of the good people of Virginia, as-1778, on the same subject, was restored; the chief sembled in full and free convention," at Williams-practical effect of which seems to have been 10 burg, issued a Declaration of Rights, “which do reduce the fees. And in the same year, the law of perlain to them and their posterity, as the basis 1761, “ regulating the practice of attorneys," was and foundation of government;" and on the 29th revived. I of June, adopted a “ Constitution, or Form of In 1784, each attorney's license in the inferior GOVERNMENT.” The same day, the first great courts was taxed five pounds; which was altered orator of Hanover county was elected the first in the next session, by taxing an attorney in those dependent governor; and the first year of the Com-courts, twenty shillings for every court in which MONWEALTH OF VIRGINIA commenced.
he qualified. ♡ This has been improved upon, ia During the Interregnum, the following oath was very recent years, by an annual tax on all lawyers, prescribed for every attorney at law, before he of a per centage on their receipts, or a commutacould practise in any court: “I do solemnly prom- tion in gross. ise and swear, that I will be faithful and true to In 1786, a very vigorous rule of taxation was the Commonwealth of Virginia, and that I will well laid down. Before an attorney could appear in and truly demean myself in the office of an attor- any court of the commonwealth, for plaintiff or ney at law. So help me God." I
defendant in any suit in which a fee might be tar. Of course, the administration of Justice, civil ed among the costs, he had to pay down 10 the and criminal, was not suspended. An ordinance clerk one-lenth of the legal fee, which proportion of the convention in May, 1776, recites that, was to be paid by every attorney appearing on " Whereas it hath been found indispensably ne- either side: a new tilhe-system indeed! The clerk cessary to establish government in this colony, in- was to be responsible for the said tenth part, whedependent of the crown of Great Britain, or any ther he received it or not, and to keep an accurate authority derived therefrom, and a plan of such memorandum of all the lawyers on either side. If government hath been accordingly formed by the he failed to make the entries, then he was to be general convention ; but it will require some time accountable for what two lawyers would have paid, to compile a body of laws suited to the circumstances of the country, and it is necessary to pro
* Hening, ix, 126-7. • Ibid, 198 and 385.
# Hening, ix., 529. # Hening, ix. 117–18.
1 Ibid. .xi, 76 and 183. Ibid. 126.
♡ Ibid. 378 an. 439.
unless it was shown that no attorney did appear, * they operated. And on the other hand, a people &c. Physicians, purgeons and apothecaries were jealous of their rights and impatient of the least apalso pretty well taxed. In 1790, the taxes on them pearance of extortion, may sometimes have done all were repealed.
the lawyers injustice. But even supposing all the In 1785 and '87, the law's indicate two species legislative denunciations against them fully merited, of neglect not very creditable to those guilty of the spirit which exacted such fair and high-minded them, viz., suffering suits 10 be dismissed by their demeanor from the Bar, must have tended to elenegligence, which was to be done at their costs: vale jis tone and purify its ranks. Till at length and failing to pay over clients' money; they were the Virginia Bar was not unworthy of the Rannow to be compelled to pay in a summary way, on dolphs, the Wythes, the Tazewells, the Pendlemotion. +
tons, the Wirts, the Wickhams and the Marshall, In 1786, it was enacted that no person, but the who have adorned it. attorney general, should practise as attorney or proctor in any court, unless licensed as heretofore
APPENDIX. described, or by three of the judges of the high court of chancery, or of the general court, in wri- Since the above was written, we have found in a MS. ting under their hands and seals ; but the candidate Book, in Latin and Greek, belonging to the “ Virginia His must bring them a certificate from the court of the torical Society,” the following sketches of two of our Cocounty, in which he had resided for the last iwelve
lonial lawyers, which are so illustrative of the foregoing
paper, months, of his honest demeanor : no one convicted book, in the end of which they appear, contains notes on
that we make no excuse for adding them. The MS. of felony 10 practise law. If the general court by Homer's Iliad, with a translation of many of the Greek their own observation detected any mal-practice, terms into Latin. The sketches are probably by Sir John or complaint in writing were made to them of any He died about 1737 at the age of 44 years, and a handsome
Randolph, highly distinguished as a lawyer and a scholar. such mal-practice in any attorney, the accused was tablet 10 bis memory is embedded in the walls of the chapel to be summoned to show cause why an information of William and Mary College: the inscription upon it has should not be filed against him; and if on such in- already appeared in the Messenger. formalion, he were found guilty, they could suispend his license or vacate it altogether, in that “ Taken from Sr. John's Breviate Book. court or any county, city or borough court. The high court of chancery and the court of admiralty “On the 14th of December 1734 Died suddenly had the same powers in reference to those courts of a Fit John Holloway Esqr. after having lanrespectively. Counsel in the inferior couris 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. He had but counsel having appeared for the appellant in practised in this Court upwards of thirty Years with the court below, were not to prosecute the appeal. great Reputation for Diligence and Learning : and This exception or proviso was probably disregard- was so much in the good Opinion of the Court, ed; for in 1788, it was re-enacted, and a penally that I have opon many Occasions known him pre. of twenty pounds denounced against whomever vail for his Clients against Reasons and Argushould appear for the same party in both courts, in ments much stronger and better than his. His the same cause. I
Opinions were by most People looked upon as deUnder these regulations slightly altered 10 this cisive, and were very frequently acquiesced in by day, the profession has moved on for more than both Parties, those against whom he pronounced, half a century, drawing to its ranks many bright being discouraged from disputing against so great ornaments; often the brightest of the state and the Authority. He practiced with much Artifice and Union.
Cunning, being thoroughly skilled in Alornyship; Even when the enactments were most severe, But when his Causes came to a Hearing, he reain the time of the colony, against the avaricious son'd little was tedious in reading long Reports of and corrupt spirit of attorneys, there were no doubt some Cases, and little Abridgments of others out many shining exceptions and lofty exemplars among of which he would collect short Aphorisms, and the colonial Bar. Indeed, the existence of such obiter sayings of Judges and rely upon them, without laws shows the prevalence of a high standard of regarding the main Point in Question; and arbihonorable dealing, and a popular sentiment requi- trarily affirm or deny a Matter of Law, which had ring strict integrity in professional matters, which often too much Weight against the Reason and were well calculated. in the lapse of lime, to pro- Difference of things. By this Method he gained duce the most gratifying effects in those opon whom many Causes which always gave him great Joy,
but was as impatient if he lost one as if it tended • Hening, xii., 283.
10 a diminution of his Credit. He was blamable # Ibid. 36, 472.
for one singular Practice, in Drawing notes for 1 Hening, xii., 339, 497, 708.
special Verdicts ; he would state naked Circuin
stances of Facts only, and leave it to the Court to offices. One of his greatest Defects was that he collect the Marier of Fact out of them ; so that would always bring his opinion and Friendship to npon such Verdicts we have had many tedjous agree. But what he wanted in Viride 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 liule Applause est Excellence was his Diligence and Industry ; and less Abilities, the 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 it at belook himself to Business having you to him mine. Yet it was impossible to be blind 10 so be one of the Attorneys of the Marshalsea Court; many Imperfections : He died liule lamented in the but not being contented with his income from that, 691h year of his age." corn'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 pro "In a few Dajes afterwards in London died Wil. found. An ejeciment was brought (whether I was liam Hopkins Esqr. who had practiced in this Court at first concerned in it I forget,) and upon a Spe- about 12 Years, and in that Time by hard Study, cial Verdict the Case was thus. A seised in Fee and Observation he made a surprizing Progress : by Deed, gave the Land in Question to B his became a very ingenious Lawyer and a good Daughter for Life and after her Death to her Heirs Pleader; thoat his first coming he was raw and forever; she sold to the Deft. and afier her Death much despised. But he had a Carelessness in his the Pli. B's Heir claiming as a Purchaser in Re. Nature, which preserved him from being discouramainder bronght this Action to recover. When I ged, and carried him on vill he came to be admired. saw this I told the Plt. who was my Client, I could He had a good Foundation in School Learning, not say one word for him; not knowing a more understood Latin and French well; had a strong certain Rule of Law than this : That where by Memory, a good Judgment; a Quickness that was Will or Conveyance any Estate of Freehold is very visible; and a handsome Person, All mighty given to the Ancestor and by the same Writing Advantages. But his manner was awkward, his an Estate is limited to his Heirs ; that makes a Temper Sower, if it was to be judged by the Ae. Fee (Heirs] being there a word of Limitation and lion of his Muscles; and was too much given to not of Purchase. Yet the Deft. by this Eminent laugh at his own Discourses. Lawyer's advice gave op the Land without Argu When he had brought himself into good Busiment, upon the Plt's allowing him to remain in ness, he almost totally neglected it; which I bePossession some short Time longer: when if the lieve was owing to a Desire of Dipping into all matter had been brought to a hearing, I would not Kinds of Knowledge ; wherein he had a great have said one word. However, his reputation was Deal of Vanily, and prevented his Digesting what snch, that he was universally courted, and most he had, so well as he would have done otherwise. people thought themselves obliged to him, if he He had many good Qualities in his Practice ; was would engage their side upon any terms; and he moderate in his Fees ; Ingenious and honest; never really thought so himself. This gave him great disputed plain Points, but was a candid fair Arguer. opportunities of exacting excessive Fees; which Yet he had a failing which brought him to a QuarI have heard he always did, where the Value of rel with me. It was an odd Sort of Pride that the thing in Question wonld allow it : and covered would not suffer him to keep an Equilibrium in his great Blemishes in one part of his private Life own Conceits: He could not see himself admired, besides many Iinperfections of his Mind, which without thinking it an Injury to him to stand upon any Body might observe who knew any thing of a level with any other. And therefore tho' I was him : He was of a hanghty, insolent nature; pas- always his Friend, had done him many kindnesses, sionate and peevish to the last Degree; He had a and he himself thought himself obliged to me, He Stiffness in his Carriage which was ridiculous and came into so ill a Temper, as not to allow me eioften offensive; and was an utter Stranger to Hos- ther Learning or Honesty, which broke our acpitality. He was sincere in his Friendship where quaintance and after that I thought I discovered some he professed any--but not constant, apt to change Seeds of Malice in him. He died in the Flower opon small provocations, and to contract new of his Age, and may be justly reckon d a Loss to Friendships upon very slighi Grounds. In which this poor Country, which is not like to abound (at he would be very warm and ready to do all good present at least) in Great Genius's."