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Full text of "The lawyer's official oath and office"

LIBRARY 

UNIVEKSiTX OP 
CAUFORMIA 
SA^4 .mCSO 



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THE 



LAWYER'S OFFICIAL OATH 



AND OFFICE 



BY 

JOSIAH HENRY BENTON, LL.D. 



BOSTON 

The Boston Book Company 

1909 



Copyright, 1909, 
By J. H. BENTON. 



THE ROCKWELL AND CHURCHILL PRESS 



THE LAWYER'S OFFICIAL OATH 
AND OFFICE. 



By JOSIAH HENRY BENTON, LL.D. 



Most of what is contained in this book was gathered by 
me in the preparation of an address deHvered before the 
Albany Law School in the Hubbard course of Legal Ethics, 
May 17, 1909. It has been suggested that its presentation 
in this form will be useful to the profession, as some of it 
is not otherwise easily accessible to all who are interested in 
the subject of the lawyer's oath and office. 

This, as well as my own belief that the dignity and impor- 
tance of the lawyer's office and of the duties imposed by his 
official oath should be more fully understood, have caused 
me to print this little book. 

Why is any oath required for admission to the practice 
of the law? No oath is required by law for admission to 
practise in any other profession, even where qualifications to 
practise are prescribed or ascertained by examinations 
required by law, as in the case of physicians. But an 
official oath has always been required for admission to the 
practice of the law. Why is it required? What is its 
significance and what obligation does it impose? 

The significance of the lawyer's oath is that it stamps the 



lawyer as an officer of the State, with rights, powers and 
duties as important as those of the Judges of the Courts 
themselves. When a lawyer is admitted to practise and 
takes the required oath of office he has as much right to 
discharge the duties of his office as a representative or 
senator has to sit and act in the Legislature, or a Governor 
to exercise the functions of a chief magistrate. He has as 
much right to appear in Court and be heard for a party to 
a cause as a Judge has to hear and decide the cause. A 
lawyer is not the scrvajit oj his client. He is not the servant 
of the Court. He is an officer of the Court, with all the 
rights and responsibilities which the character of his office 
gives and imposes. 

He is also an officer for life whose office cannot be taken 
from him except for cause established by due process of law 
upon proof, hearing and judicial determination. 

This was settled upon great consideration by the United 
States Supreme Court in the noted case of Ex parte Garland 
(4 Wallace, 333). In 1865 Congress passed an act pro- 
viding that no person should thereafter be admitted to the 
Bar of tne Supreme Court of the United States, or any other 
Federal Court, unless he should first have taken and sub- 
scribed an oath to the effect that he had " never voluntarily 
borne arms against the United States, or voluntarily given 
aid, countenance, counsel or encouragement, to persons 
engaged in armed hostility thereto, or attempted to exercise 
the functions of any office under any authority or pretended 
authority in hostility to the United States," and the rule of 
the Supreme Court as to the admission of attorneys was 
changed in that year by the addition of a clause requiring an 
oath in conformity with this act of Congress. 



5 

The question as to the vaHdity of this statute and change 
in the rule of Court was raised by Mr. Garland, who had 
been admitted to practise under the original rule of Court in 
i860, and had thereafter been a member of the Confederate 
Congress, but had been pardoned by the President in July, 
1865. Of course, he could not take the oath required by the 
amended rule, and the effect was that the act of Congress 
and the rule enforcing the same prevented him from ever 
being an attorney in any Federal Court, i.e., deprived him of 
his office as an attorney. 

The Supreme Court held that the office of an attorney 
was not an office created by Congress, and depending 
upon Congress for its continuance, but that an attorney 
was an officer of the Court, holding his office during good 
behavior, and could only be deprived of it for misconduct, 
ascertained and declared by the judgment of the Court after 
opportunity to be heard had been afforded. It was also held 
that the admission or exclusion of attorneys was the exercise 
of judicial power, and that " the attorney being by the solemn 
judicial act of the Court clothed with his office, does not hold 
it as a matter of grace and favour. The right which it con- 
fers is not revocable at the pleasure of the Court, or at the 
command of the legislature. It is a right of which he can 
only be deprived by the judgment of the Court for moral or 
professional delinquency." * 

Speaking of this subject in a leading case, f where an act 
of the Legislature was held unconstitutional because it com- 

*As the result of this decision the Court, by the same opinion in which it was 
rendered, rescinded the amendment of the rule requiring an additional oath ot admis- 
sion as an attorney. And the rule was thus restored to its original form, in which it 
now exists (210 U.S., page 472). 

tSplain's Petition, 123 Penn. St. 527. 



manded the Court to admit persons whether found to be fit 
or not, Paxson, C.J., said: 

" No judge is bound to admit, nor can be compelled 
to admit, a person to practise law who is not properly 
qualified, or whose moral character is bad. The pro- 
fession of the law is one of the highest and noblest 
in the world. The relation between attorney and client 
is a very close one, and often involves matters of great 
delicacy. The attorney is an officer of the court, and is 
brought into close and intimate relations with the court. 
Whether he shall be admitted or whether he shall be 
disbarred is a judicial and not a legislative question." 

One of the greatest lawyers the United States has pro- 
duced, Justice Miller of the Supreme Court, spoke of the 
lawyer's office in these words : 

"The lawyer in this country is one of the adminis- 
trators of justice. The judge who presides in the court 
is another, with more authority of position, and, perhaps, 
in some respects a more burdensome one. But the 
court, and the clerk, and the marshal, the sheriff, the 
jury, the lawyer, all constitute ministers of justice ; and 
a lawyer who consciously undertakes to thwart justice is 
unfit for the position, as much as the judge who accepts 
a bribe, or knowingly decides a case against the law and 
the right; and it should be understood that they are 
subjected to the same responsibilities. They have a 
duty, undoubtedly, to their clients; but this is not the 
first duty, as is generally supposed. Their first duty is 



the administration of justice, and their duty to their 
cHent is subordinate to that." * 

In the discharge of the duties of his office the lawyer 
exercises large powers and has corresponding responsibili- 
ties. He may bind his client by agreements and by conduct 
of which the client knows nothing, if they are within the 
scope of his duties as a lawyer in respect to a matter con- 
fided to him by the client. He may institute suits and 
cause acts to be done in them for which his client may be 
held responsible although entirely ignorant of them when 
done. He may bind his clients by written agreements out of 
Court or by oral agreements in open Court. He may dis- 
miss his client's case or consent to a judgment against him, 
and the client is bound by his action. 

His right to appear for his client can only be questioned 
by the client. His adversary cannot force him to prove his 
right to appear for his client, nor will the Court do so except 
for special and peculiar cause. As a rule his statements of 
fact, unless disputed, are accepted and acted upon by the 
Court as true. Countless judicial acts, many of them impor- 
tant, are daily done by the Courts upon unsupported state- 
ments of fact by lawyers, and in my judgment the business 
of the Courts could be done in no other way. Time would 
not permit proof by writing or by witness of every fact upon 
which the Courts must act. They must be able to rely upon 
counsel, and they do so, because the lawyer is acting as an 
officer of the Court under the sanction and responsibilities of 
an official oath. 

A great English Judge, Lord Langdale, in a ruling by 

* In re Thomas, 36 Fed. Rep. 243. 



8 

which he required counsel to aid him with their opinions as 
to the character of a certain class of cases, stated the duty 
of lawyers and their relation to the administration of justice 
in language so apt, and also so appreciative of the services 
of lawyers, that I quote it. He said : 

" With respect to the task, which I may be considered 
to have imposed upon counsel, I wish to observe that it 
arises from the confidence which long experience 
induces me to repose in them, and from a sense which 
I entertain of the truly honourable and important ser- 
vices which they constantly perform as ministers of 
justice, acting in aid of the Judge before whom they 
practise. No counsel supposes himself to be the mere 
advocate or agent of his client, to gain a victory, if he 
can, on a particular occasion. The zeal and the 
arguments of every counsel, knowing what is due to 
himself and his honourable profession, are qualified not 
only by considerations affecting his own character as a 
man of honour, experience, and learning, but also by 
considerations affecting the general interests of justice." * 

A lawyer as an officer of the Court is also privileged from 
arrest upon civil process while engaged in the performance 
of his duties. f 

A lawyer is also privileged as to the language honestly 
and pertinently used by him in the pleadings or in the con- 
duct of a case in Court, subject only to the limitation that 
he shall not use the language "to gratify private malice by 
uttering slanderous expressions, either against a party, wit- 



* Hutchinson v. Stephens, i Keen's Reports, 659 at 668. 
t/« re Jewitt, 33 Bevan, 559. 



ness or third person, which have no relation to the cause or 
subject matter of the inquiry." * 

It is therefore of the highest importance that the lawyer's 
oath should not only be uniform in all our Courts, but that 
it should be so framed as to indicate the duties and re- 
sponsibilities of those who take it. In short, the lawyer's 
oath should be a condensed code of legal ethics. And 
this is what it was in England and in America from the 
beginning until by a reaction against the multiplicity of oaths 
imposed by law and of oaths taken without warrant of 
law, the lawyer's oath was so changed in form as to be 
now in most of the State Courts and in all the Federal 
Courts only a mere obligation to discharge faithfully the 
duties of the office of an attorney. 

How far the adoption of codes and canons of legal ethics 
will be of permanent benefit may well be questioned, but if 
the work which has been done, and is being done, in that 
direction by the public-spirited members of the profession 
who have it in charge results in restoring in all our Courts the 
official lawyer's oath of the English-speaking people in the 
olden time, which is now used in some States, it will be of 
permanent benefit to the profession and the people. 

When was that oath framed and what was it? It was 
doubtless framed when the order of the English Bar was 
established, and lawyers were called pleaders, sergeants- 
at-law and attorneys. The order of the profession of the 
law exists by the right of an earlier creation than that 
of the oldest English peerage, and its history can be traced 
for more than eight hundred years. It was a part of the 

*Hoari'. Wood, 3 Metcalf (Mass.), 197; Mackay v. Ford, 5 H.& N. 792; Ruohs v. 
Backer, 6 Heisk (Tenn.), 406. 



10 

administration of the government of the realm before [the 
Hail of William Rufus lifted its arches to the English sky, 
and for more than three centuries before Columbus swept 
the veil from the face of the new world.* 

When, in the reign of Edward I. (A.D. 1272-1307), — 
the English Justinian, — English history ceased to be the 
" domain of antiquarians," and became " the domain^ of 
lawyers," f lawyers were recognized as an existing order, 
and their conduct regulated by the famous Statute, Primer 
Westminster, A.D. 1275. This statute, which Coke says 
was the first English statute passed by a lawful Parliament 
consisting of the Commons, the Lords spiritual and temporal, 
and the King, provided that: 

" If any serjeant, pleader, or other, do any manner of 
deceit or collusion in the king's court, or consent unto 
it, in deceit of the court, or to beguile the court, or the 
party, and thereof be attainted, he shall be imprisoned 
for a yeare and a day, and from thenceforth shall not be 
heard to plead in that court for any man ; and if he be 
no pleader, he shall be imprisoned in like manner by the 
space of a year and a day at least; and if the trespass 
require greater punishment, it shall be at the king's 
pleasure." 

The commentary of Coke upon this statute shows what 
the oath of the serjeant-at-law was. He says : 

" For the better understanding of this act, it is 

*The Order of the Garter was established in 1330, the first Marquis was created in 
1385, the first Duke was created in 1388, the Order of the Bath was established in 
1399, and the rank of Viscount was first used in 1440. 

t Freeman's "Growth of the English Constitution," Chapter II. 



II 



necessary to set downe the oath of the serjeaunt at 
law. 

" This oath consisteth on foure parts. 

" I. That he shall well and truly serve the kings 
people, as one of the serjeaunts of the law. 

" 2. That he shall truly counsell them, that he shall 
be retained with, after his cunning. 

" 3. That he shall not defer, tract, or delay their 
causes willingly, for covetousnesse of money, or other 
thing that may tend to his profit. 

" 4. That he shall give due attendance accordingly." 

Then speaking of the oath of the King's sergeant-at-law 
he says : 

" This oath consisteth on six parts. 

" I. That he shall well and truly serve the king and 
his people, as one of the kings serjeaunts at law. 

" 2. That he shall truly counsell the king in his 
matters when hee shall be called. 

" 3. And duely and truly minister the kings matters 
after the course of the law, to his cunning. 

" 4. He shall take no wages or fee of any man for 
any matters, where the king is party, against the king. 

" 5. He shall as duly, as hastily speed such mat- 
ters, as any man shall have to do against the king in the 
law, as he may lawfully doe, without delay, or tarrying 
the party of his lawful proces in that belongeth to him. 

" 6. He shall be attendant to the kings matters 
when hee shall be called thereto." * 

A chapter is given to a statement of the duties of Eng- 

* Coke's Second Institute (Ed. 1817), pages 212-214. 



12 

lish lawyers in that curious manuscript written probably 
about A.D. 1285 called "The Mirror of Justices " as follows: 

" Chap. V. of Pleaders. 
" Some there be who know not how to state their causes 
or to defend them in court, and some who cannot, and there- 
fore are pleaders necessary; so that what plaintiffs and 
others cannot or know not how to do by themselves they 
may do by their Serjeants, proctors, or friends. Pleaders 
are Serjeants wise in the law of the realm who serve the com- 
monalty of the people, stating and defending for hire actions 
in court for those who have need of them. Every pleader 
who acts in the business of another should have regard to 
four things : First, that he be a person receivable in court, 
that he be no heretic, nor excommunicate, nor criminal, nor 
man of religion, nor woman, nor ordained clerk above the 
order of subdeacon, nor beneficed clerk with the cure of 
souls, nor infant under twenty-one years of age, nor judge 
in the same cause, nor open leper, nor man attained of falsi- 
fication against the law of his office. Secondly, that every 
pleader is bound by oath that he will not knowingly main- 
tain or defend wrong or falsehood, but will abandon his client 
immediately that he perceives his wrongdoing. Thirdly, 
that he will never have recourse to false delays or false wit- 
nesses, and never allege, proffer, or consent to any corrup- 
tion, deceit, lie, or falsified law, but loyally will maintain the 
right of his client, so that he may not fail through his folly, 
or negligence, nor by default of him, nor by default of any 
argument that he could urge ; and that he will not by blow 
contumely, browl, threat, noise, or villian conduct distub 
any judge, party, serjeant, or other in court, nor impede 



13 

the hearing or the course of justice. Fourthly, there is the 
salary, concerning which four points must be regarded — the 
amount of the matter in dispute, the labour of the serjeant, 
his value as a pleader in respect of his (learning), eloquence, 
and repute, and lastly the usage of the Court. A pleader is 
to be suspended if he is attainted of receiving a fee from both 
sides in one cause, or if he says or does anything in contempt 
of the judge, or if he fails in any of the points above men- 
tioned concerning the exceptions which may be taken to 
the person of the pleader, for none may be a pleader who 
cannot be an accuser or plaintiff." * 

This statement of the duties of lawyers in England cor- 
responds somewhat to the statement of their duties in Nor- 
mandy, found in Chapter 64, Grand Coutumier de Normandie, 
and makes it probable that the requirements of the English 
law in this matter were based upon those of the Norman law, 
for after the Conquest the laws and customs of Normandy 
entered into and modified those of England, as English laws 
and customs reciprocally modified those of Normandy. f 

The lawyer's office was well established, however, in Eng- 
land and in France long before this time. 

When in the year 707 the French Parliament ceased to be a 
purely political body and assumed certain judicial functions, 
it became ambulatory and followed the King, holding sittings 
wherever the King from time'to time resided. Certain advo- 
cates attended it at these sittings, and were recognized as 
lawyers, and entitled to practise in the Parliament. The 
body of laws made in 802, called the Capitularies of Charle- 
magne, recognized the profession of the lawyer and pro- 

*"The Mirror of Justices," Selden Edition, 1895, pages 47-8. 
tSee Hale's History of the Common Law of England, Chap. 6. 



14 

vidcd " that nobody should be admitted therein but men, 
mild, pacific, fearing God, and loving justice, upon pain of 
elimination." 

But by an ordinance of February 13, 1327, Philippe de 
Valois, then Regent, provided that 

" No advocate shall be permitted to plead if he has 
not taken the oath, and if he be not inscribed on the 
roll of advocates." 

In 1344, further regulations were made by the Parliament 
of Paris, providing that 

"Those advocates who are retained shall not be 
allowed to continue their practice unless they bind 
themselves by oath to the following effect : to fulfil their 
duties with fidelity and exactitude ; not to take charge 
of any causes which they know to be unjust; that they 
will abstain from false citations; that they will not seek 
to procure a postponement of their causes by subter- 
fuge, or malicious pretexts ; that whatever may be the 
importance of a cause, they will not receive more than 
thirty livres for their fee, or any other kind of gratuity 
over and above that sum, with liberty, however, to take 
less ; that they will lower their fees according to the 
importance of the cause and the circumstances of the 
parties ; and that they will make no treaty or arrange- 
ment with their clients depending on the event of the 
trial." * 

Among the decrees promulgated at a Council at St. Paul's, 

*A History of the French Bar, Ancient and Modern, by Robert Jones, pages loo, 103. 



15 

London, in 1237, by Cardinal Otto, Legate of Pope Gregory 
Ninth, who had been summoned to England by Henry Third, 
was one as to the oath to be taken by advocates, as follows : 

" We, therefore, rising to the assistance of justice, do, 
with the approbation of the council, decree, that who- 
ever wishes to obtain the office of advocate shall make 
oath to the diocesan in whose jurisdiction he lives, that 
in cases in which he may plead, he will plead faithfully, 
not to delay justice or to deprive the other party of it; 
but to defend his client both according to law and 
reason. Otherwise, they shall not be admitted to plead, 
in matrimonial cases and elections, unless they make a 
like oath; and they shall not be admitted in other cases 
before the ecclesiastical judge for more than three 
terms, without an oath of this kind, unless by chance a 
demand is to be made on behalf of this church, or his 
lord, or for a friend, or for a poor man, a foreigner, or 
any wretched person. Let all advocates beware that 
they do not themselves, or by means of others, suborn 
witnesses, or instruct the parties to give false evidence, 
or to suppress the truth : those who do so shall be, ipso 
facto, suspended from office and benefice, until they 
have made proper atonement for the same ; and if they 
are convicted of so doing, they shall be duly punished, 
all other matters notwithstanding. Judges, too, who are 
ignorant of the law, should, if any doubtful point arise, 
from which injury may accrue to either party, ask the 
advice of some wise person, at the expense of both 
parties."* 

* Matthew of Paris, Eng. Hist., Vol. I., page 91 (Bohn, 1852). 



i6 



An ordinance of Philip the Bold, of France, concerning 
the functions and fees of attorneys, given October 23, 1274, 
provided as follows : 

" Philip, by the grace of God, king of the PVanks, to the 
seneschal of Carcassonne.* Greeting : 

" Inasmuch as we are zealously guarding the interests and 
welfare of our subjects, so that before you and in the courts 
of bailiffs, seneschals, prefects and other judges, that is, our 
representatives, they may obtain each one his lawful right in 
cases at law and transactions more easily and freely; and, 
furthermore, inasmuch as we propose to deter those who in 
the matter of cases at law and judicial transactions offer their 
professional services, from maliciously protracting legal 
contests or charging immoderate fees, Therefore: 

"(i.) We have it ordained and made a statute that all 
and each one exercising the functions of attorney either in 
your court or in that of bailiffs and our aforementioned 
officials, that is, in the courts of judges, shall swear upon the 
Sacred Gospels the oath, viz. : That in all cases which are 
being tried in said courts before which they have practised in 
the past or shall practise, they will perform their duties bona 
fide diligently and faithfully as long as they have reason to 
believe their case to be just. They shall not bring any case 
into said courts either as defending or counselling lawyers 
unless they shall have believed it to be just; and, if at any 
stage of the trial the case appears to them unjust, or even 
intrinsically bad, they shall discontinue to further defend it, 
withdrawing from said case entirely as defending or counsel- 

* Carcassonne, in the department of Aude, was one of the oldest fortified cities in 
Central France. Philip the Bold made it the capital of Central France. 



17 

ling lawyers. Whosoever declines to swear in accordance 
with this formula, shall take cognizance, that in said courts 
they are disbarred, as long as they persist in this state of 
mind. 

" (2.) Now, concerning the fee of attorneys, we have held 
it a statute that fees should be received in accordance with 
the importance of the case and the merits of the attorney; 
and this for each case that is being argued. But for an 
entire case argued either before our tribunal or yours, or 
that of any of our aforesaid justiciaries, the fee of one 
attorney shall not exceed the amount of 30 francs.* 

" (3.) The attorneys shall swear also that neither under 
the guise of pension or stipend or present or favor, nor 
under any kind of pretext of their own, nor by device of 
others; nor by any scheme of whatever color planned in the 
past or being planned even without fraudulent intent, they 
shall acquire any amount beyond the one stated afore 
Whosoever undertakes to break the orders and statutes as 
laid down, and thus violates the oath that has been sworn to, 
this same attorney, his case having been proven in the afore- 
said courts, shall be branded with the stigma of perjury and 
infamy, without looking for any specific sentence upon him; 
and he shall be, hereafter and forever, disbarred from exer- 
cising the functions of an attorney; unless it seems best to 
us or to the others of our judges in whose courts he have 
been found guilty, to punish him in some other way. 

" (4.) We have ordained also, that aforesaid oath shall be 
renewed by all attorneys every single year; and this our 

* " Thirty francs." The Latin says : Summam triginta librarum turonensium, the 
sum of 30 turonensian pounds ; a piece of money, first coined at St. Martin's Abbey 
in Tours, France. During the eleventh century it became the royal coin, supplanting 
almost wholly the Parisian franc. In value it exceeded somewhat a modern franc- 
piece. 



i8 



order we command to be published by our bailiffs, sene- 
schals, and our other justiciaries in their assisses three times 
each year. 

" To you we command strict enforcement, and to sec that 
this our statute be faithfully observed by those under your 
authority; also, that it be published in the assisses and courts 
as soon as they convene with you, and to have this publica- 
tion repeated everywhere three times each year. 

" Transgressors of it you will punish in accordance with the 
form prescribed before. 

"Acted, in Paris, on the day of March, preceding the feast 
of the Saint Apostles, Simon and Jude, in the year of Our 
Lord 1274." * 

The official character and duties of lawyers were recog- 
nized and enforced by an edict of Francis L, 1536, on the 
administration of justice in the Bretagne, and on the shorten- 
ing of trials, as follows: 

Chap. I., Article 37 : That " advocates must not give 
advice to both parties under punishment of being heavily 
fined by financial penalties, suspension or loss of all their 
property." 

Also in Chap. I., Article 39 : That " if there should happen 
some poor and wretched people, who on account of their 
poverty or because of the sway and fear of their parties (z.e., 
opponents), cannot obtain counsel, we enjoin the judges to 
provide counsel for them, and to punish and fine the attor- 
neys {advocats^ and barristers {procoiireurs) who without 



* Recueil generale des anciennes lois fran9aises depuis I'an 420Jusqu'a la revolution 
de 1789; Paris, Tome II. (1270-1308), pages 652-654, No. 247. 



19 

reasonable ground, should have refused to take charge of 
them." * t 

This was only following the laws and customs of all 
European nations in the Middle Ages and also those of the 
Roman Empire. The man of law who advised and spoke 
for others for hire had recognized and regulated rights and 
duties under the sanction of an official engagement or prom- 
issory oath. In Rome when the advocatus was called upon 
by the Praetor to aid a client in a cause, he was solemnly 
exhorted " to avoid artifice and circumlocution." " Aderant 
in judicio advocati, qui causas litigantium nudo simpliciqye 
oratione, sine ullo verborum circuitu. tractare jubebantur." | 

In 1 22 1 Frederic the Second prescribed an oath as follows: 

•' We will that the advocates to be appointed, as well in our 
court as before the justices and bailiffs of the provinces, before 
entering upon their office, shall take their corporal oath on the 
Gospels, that the parties whose cause they have undertaken 
they will, with all good faith and truth, without any tergiver- 
sation, succour; nor will they allege any thing against their 
sound conscience ; nor will they undertake desperate causes ; 
and, should they have been induced, by misrepresentation and 
the colouring of the party to undertake a cause which, in the 
progress of the suit, shall appear to them, in fact or law, 
unjust, they^^ill forthwith abandon it. Liberty is not to be 
granted to the abandoned party to have recourse to another 
advocate. They shall also swear that, in the progress of the 

* Recueil genSrale. Tome XII. (1514-1546), No. 235, page 515. 

t This was always the duty of the lawyer at tlie Common law of England. See Viner's 
Abridgment, Title Pauper, etc. 

X Lawyers were present at the trial who were enjoined to handle the cases of litigants 
without artfulness and with simple language without any circumlocution. 



20 



suit, they will not require an additional fee, nor on the part 
of the suit enter into any compact; which oath it shall not 
be sufficient for them to swear to once only, but they shall 
renew it every year before the officer of justice. And if 
any advocate shall attempt to contravene the aforesaid form 
of oath in any cause, great or small, he shall be removed 
from his office, with the brand of perpetual infamy, and pay 
three pounds of the purest gold into our treasury.' "* 

Paul Fournier, Les officialites au nioyeii age. Etude sur 
I'organisation, la competence et la procedure des tribunaux 
ecclesiastiques ordinaires en France, de ii8o a 1328, Paris, 
1880, page 21, lines 1-6, says that: "When entering upon his 
duties, the official swore an oath to perform his duties with 
integrity, to defend and guard the jurisdiction of his court, 
and in no wise to permit a lessening of its privileges. In 
certain localities, he had to renew this oath annually. The 
obligation of the oath was required of all officials of the 
ecclesiastical court (la cour spirituelle)." 

This statement rests upon the documentary evidence fur- 
nished by Giovanni Domenico Mansi in his collection of the 
orders, decrees, and statutes of the councils and synods of 
the Mediaeval Church. f From the large number of statutes 
concerning the oath, duties, and privileges of lawyers con- 
tained in this collection a few are as follows : 

The Council of Rouen, held A.D. 123 i, decreed in section 
45 of its statutes, % that: 

*" Oaths; their Origin, Nature, and History," by James Endell Tyler, B.D. 
London, 1835. Page 300. 

t Labbe, Philippe, and Gabriel Crossart, " Sacrorum conciliorum nova et amplissima 
collectio , . . editio novissima a . . . patre Mansi edita. Florentiae, 1759." 
Reproduction in facsimile. Paris, Welter, 1901. 

X Concilium Provinciale celebratum Rotomagi. Capitulum 45, in Labbe and 
Crossart, volume 23 (1903), col. 216. 



21 



" Every single advocate shall swear that he will faith- 
fully perform his duties ; that he will not support cases 
that are unjust or militate against his conscience ; that 
he will not abstract (embezzle) documents of his party 
(client), nor cause such to be abstracted; that he will 
not, to his knowledge, use false pleas, or such as have 
been malitiously excogitated ; that he will not bring it 
about that falsehoods and surreptions be made, or that 
false documents be produced in his case ; nor that he 
will prolong (delay) the case of his client as long as 
he believes that he is acting in the interest of the client 
himself; and that in those matters which shall be trans- 
acted in court and concerning which requirements are 
made of him by the Judges, he will not silence the 
truth according to his belief; and that if he become 
convinced of being inadequate to the handling of the 
case, he will have conference with the procurators ; and 
that he will prepare with his own hand a journal and the 
acts in cases which he has taken, as faithfully as pos- 
sible ; or that he will cause them to be written out, in 
case he be neither able nor willing to do so himself." 

The same year, 1231, the bishops of the Province of Tours, 
under Archbishop Juhel de Mayenne, assembled a council at 
Chateau-Gontier, of whose reform-canons section 36, 
entitled : " Concerning the oath of the advocates," states 
that: "The advocates who in accordance with usage receive 
pay, shall by no manner of means be admitted, unless they 
have been sworn in. The formula for such an oath is thus: 
That they shall not favor (take) knowingly cases that are 
not just; nor shall they bring about, with malice afore- 



22 



thought, undue delay or haste in the conduct of cases by- 
means of false oath, rather than stand by the truth. Nor 
shall they instruct their client toward malitious answer or 
statement ; nor shall they after the published attestations, or 
at any stage of the trial, nor even before the oath suborn 
witnesses, or cause them to be suborned. Nor shall they 
permit their client to produce false witnesses ; and if they 
should gain knowledge thereof, they shall reveal such to 
the court. If memorials (briefs) are to be made they shall 
do so in good faith, and not withdraw from court malitiously, 
until the memorial be completed and admitted in court. 
Clients they shall expedite to the best of their ability, and in 
good faith. Nor shall they bother (literally burden) the 
Judge with objections, believing that they will give in to 
them. They shall sustain the honor of the court, nor perpe- 
trate in court a falsehood." * 

The same Bishop Juhel in a synod at Tours, A.D. 1236, 
stated in Chap. 2," Concerning advocates," that : " Inasmuch 
as through the ignorance of advocates or scribes many sus- 
tain losses in trials, therefore we ordain that none shall be 
admitted in public trials, unless they have studied law for 
three years, or have proven capable, in the past, in the 
conduct of cases." | 

In 1278 the synod of Langeais, in France, under the 
presidency of the Metropolitan of Tours, Jean de Montse- 
reau, ordained that: "Without mentioning anything new, we 
ordain, that the customary pleaders or advocates of trials 

* Concilium apud Castrum Gonterii. Capitulum 36 : " De juramento advocatorum," 
in Labb6 and Crossart, volume 23, columns 240, 241. 

+ Concilium Turonense. Capitulum 2: " De advocatis," in Labbe and Crossart, 
volume 23, columns 411, 412. 



23 

shall swear at the time when they are admitted to the court 
either for the purpose of stating or defending a case that 
knowingly they will not favor cases that are unjust, and 
that they will give their clients as faithful a defense as is 
in their power. And, inasmuch as not a few cases have 
been lost through ignorance on the part of advocates, we, 
therefore, will that none shall be admitted to conduct cases in 
the ecclesiastical court, unless they have studied three years 
at least in canon and civil law, or are otherwise made experts 
in the performance of their duties. To be sure, all other 
statutes promulgated in regard to advocates, are remaining 
in full force." * 

In 1295 Robert of Winchelsea, Archbishop of Canterbury, 
issued " Statuta et ordinationes " for the better administra- 
tion of his diocese. Chapter 3 of these statutes and orders 
describes the Form of oath of advocates and procurators 
(z.^., attorneys and barristers), as follows: 

" Advocates also and the general procurators of the 
aforesaid consistory, may swear similarly the oath written 
above (Section i : formula of the oath of judges), with these 
additions, unless they should be contained in the afore- 
mentioned formula, that they will observe the aforesaid 
customs and statutes, as far as they afifect them, and that 
they will bring no case to trial, unless they believe it to be 
true and honest, upon the information on the part of their 
clients; that, in receiving informations from their clients, 
they will elicit from them, with all possible caution, the 
truth of the case, and they will clearly show their clients the 

* Concilium Langesiense. Capitulum 15: " De advocatis," in LabVju and Crossart, 
volume 24 (1903), column 216. 



24 

dangers to which they expose themselves in legal proceed- 
ings as far as they know, declining to prosecute any further 
desperate, bad cases; and as soon as the cases or surround- 
ing conditions show themselves to be unjust (dishonest) 
from the point of view of the law, they shall relinquish them 
entirely." * 

In this connection the lawyer's oath in use in the north of 
Europe in olden times is of interest. 

The code of Danish laws promulgated by Christian V. of 
Denmark and Norway in 1683 as a revision of the code 
completed in 1669, contained a chapter entitled " Of those 
who are allow'd to plead the Causes of others, or their own," 
which provided that 

" Lawyers who are allowed to plead Causes, shall be 
Men of Probity, Character, and known Repute. 

" In Cities shall be appointed such a Number of 
Lawyers as are really requisite. 

"No one shall be admitted as a Lawyer to act, who 
does not take an Oath before the Mayor and Aldermen, 
that he will undertake no Cause he knows to be bad, 
or iniquitous; that he will avoid all Fraud in pleading, 
bringing Evidence, and the like: That he- will abstain 
from all Cavils, Querks and Chicanery; and never seek 
by Absence, Delays, or superfluous Exceptions, to pro- 
crastinate a Suit : That he will use all possible Brevity 
in transcribing Processes, Deeds, Sentences, &c. That 
he will never encourage Discord, or be the least Hind- 
rance to Reconciliation : That he will exact no exor- 

* Labbe and Crossart, volume 24, column 1149. 



25 

bitant Fees from the Poor, or others : And that he will 
act honestly, and to the best of his Power, for all his 
Clients. Of this Oath the Judges shall admonish the 
Lawyers in dubious Cases, and if they think proper, 
require a Renewal of it in the Court; and moreover, 
command them to abstain from all Manner of Scurrility, 
and Abuse, in their Pleadings, especially where the 
Process does not concern the Fame of the Defendant. 

" A Lawyer defective in this his Duty shall be dis- 
carded, rendered incapable of ever after pleading, and 
moreover punishment in Proportion to his Offence." * 

The earliest authentic forms of the lawyer's oath in 
England now to be found are those of the Serjeant-at-Law 
and of the King's Serjeant in an ancient Roll of Oaths in the 
reign of Queen Elizabeth, which was until recently kept in 
the Crown Office at Westminster, but is now at the Record 
Office in Chancery Lane, London. The Deputy Clerk of the 
Crown reported to the Select Committee of the House of 
Commons upon the Public Records of the Kingdom in 1800 
as to this Roll as follows : 

" There is no date to the Roll above-mentioned, but 
it appears to have been written in the reign of Queen 
Elizabeth, and has been altered (only in form) to make 
the oaths applicable to the reign of King Charles." 

I have recently personally examined this Roll, and careful 
inspection of it confirms the above statement. This report 
of the Deputy Clerk also shows that the oaths of the Ser- 

*The Danish Laws: Or the Code of Christian the Fifth, Faithfully translated for 
the Use of the English Inhabitants of the Danish Settlements in America. London, 
1756. pages 58, 59. 



26 



jeants-at-La\v and of the King's Serjeant were administered 
by the Clerk of the Crown, and that there was no record in 
the books of the Crown Office showing that any change had 
ever been made in their form.* 

These oaths as now, copied from the Roll itself, are as 
follows : 

Ki)ig' s Serjeant. 
Ye shall Swear, That well and truly ye shall serve the 
King and His People, as one of His Serjeants of the 
„ _ Law, and truly council the King in His 

Sacrra ser- ^ o 

vient regis ad Matters whcn ye shall be called, and duely 
^^^^' and truly minister the King's Matters, after 

the Course of the Law, to your Cunning: ye shall take 
no Wages nor Fee of any Man for any Matter where 
the King is Party against the King; ye shall as duly 
and hastily speed such Matters as any Man shall have 
to do against the King in the Law, as ye may lawfully 
do without Delay or tarrying of the Party of his lawful 
process in that that belongeth to you ; ye shall be 
attendant to the King's Matters when ye shall be called 
thereto; as God you help, and by the Contents of this 
Book 

Serjeant at Law. 
Ye shall Swear, That well and truly ye shall serve the 
King's People as one of the Serjeants at the Law, and 
ye shall truly council them that ye shall be 

Sacrum ser- ^ •' ^ 

vientum ad retained with after your Cunning; and ye 
*^^"'' shall not defer, tract, or delay their Causes 

willingly, for covetous of Money, or other Thing that 
may turn you to Profit; and ye shall give due Attend- 
ance accordingly; as God you help, and by the Con- 
tents of this Book, t 

♦Reports of House of Commons, Vol. XV. (Appendix D. 2. C), p. 98. 
+ These oaths are numbered 12 and 13 on the original Roll. 



27 

This Ancient Roll contains no form of Attorney's Oath, 
but attorneys were sworn certainly as early as 1402, when 
it was provided by Act of Parliament as follows : 

" For sundry Damages and Mischiefs that have ensued 
before this Time to divers Persons of the Realm by a 
great Number of Attornies, ignorant and not learned in 
the Law, as they were wont to be before this Time ; (2) 
it is ordained and established, That all the Attornies 
shall be examined by the Justices, and by their Discre- 
tions their Names put in the Roll, and they that be good 
and vertuous, and of good Fame, shall be received and 
sworn well and truly to serve in their Offices, and espe- 
cially that they make no Suit in a foreign County; and 
the other Attornies shall be put out by the Discretion of 
the said Justices; (3) and that their Masters, for whom 
they were Attornies, be warned to take others in their 
Places so that in the mean Time no Damage nor Preju- 
dice come to their said Masters. (4) And if any of the 
said Attornies do die, or do cease, the Justices for the 
time being by their Discretion shall make another in his 
Place, which is a vertuous Man and learned, and sworn 
in the same Manner as afore is said; (5) and if any 
such Attorney be hereafter notoriously found in any 
Default of Record, or otherwise, he shall forswear the 
Court, and never after be received to make any Suit in 
any Court of the King ; (6) And that this Ordinance be 
holden in the Exchequer after the Discretion of the 
Treasurer and of the Barons there." * 

The earliest authentic record of an Attorney's Oath 
now to be found is in the famous Red Book of the Exchequer 
preserved in the Record Office. This book was a reg- 

*4 Henry IV., Cap. 18. 1402. 



28 



ister of important documents, forms of oaths and other 
matters which it was deemed desirable to preserve in a per- 
manent form, transcribed from mediaeval Remembrancer 
Books and other sources. It was doubtless a book of 
precedents in the Court of Exchequer from a very early 
period, perhaps as early as the year 1246, and additions were 
made to it from time to time, notably of most of the forms 
of oaths contained in it.* 

In this book is found the form as follows: 

" The Oath of the Attorneys in the Office of Pleas!' 

" You shall doe noe Falshood nor consent to anie to 
be done in the Office of Pleas of this Courte wherein 
you are admitted an Attorney. And if you shall knowe 
of anie to be done you shall give Knowledge thereof to 
the Lord Chiefe Baron or other his Brethren that it may 
be reformed you shall Delay noe Man for Lucre Gaine 
or Malice you shall increase noe Fee but you shall be 
contented with the old Fee accustomed. And further 
you shall use your selfe in the Office of Attorney in the 
said office of Pleas in this Courte according to your 
best Learninge and Discrecion. So helpe you God." 

No original record of the oath of an attorney-at-law other 
than the foregoing oath from the Red Book is now to be 
found, but such an oath was doubtless framed and in use cer- 
tainly from the time of the Act of Henry IV. in 1402, and 
the form of this oath, which it will be observed follows the 
provisions of that Act, is found in a rare and curious book 

* Introduction to the Red Book of the Exchequer, Part I. Edited by Hubert Hall 
of the Public Record Office. 1896. 



29 

printed in 1649, called "The Book of Oaths," the title-page 
of which illustrates the view then taken of official oaths. 
It is as follows : 

THE 

BOOK OF OATHS, 

AND 

The fever all forms thereof^ 
both Ant lent and Modern. 
Faithfully Collected out of 
fundry Authentike Books and 
Records., not heretofore extant^ 
compiled in one Volume. 
Very ufeful for all perfons whatfoever, 
especially thofe that undertake any Of- 
fice of magif trade or publique Imploy- 
ment in the Co?n??ion-wealth . 
Whcreunto is added a perfect Table. 



Numb. 30. 2. // a man vo-w a vow unto the Lord, or 
Jtveare an oath to bind his foule with a bond : he f hall 

not breake his word, he J hall doe according to all that 

proceedeth out of his mouth. 
Heb. 6. 16. For ))ten verily fweare by the greater^ and an 

oath for confirmation is to them an end of all ftrife. 



Printed at London for W. Lee, M. Walbancke, 
D. Pakeman, and G. Bedle. 1649. 



30 

This oath, found on page 29 of the Book of Oaths, is as 
follows : 

The Oath of an Attorney-at-Laiv . 
Vou shall doe no falshood, nor consent to any to be 
done in the Court, and if you know of any to be done 
you shall give knowledge thereof unto my Lord Chiefe 
Justice, or other his Brethren, that it may be reformed ; 
you shall delay no man for lucre or malice ; you shall 
encrease no Fees, but shall be contented with the old 
Fees accustomed ; you shall plead no Forraigne Plea 
nor suffer no Forraigne Suits unlawfully to hurt any 
man, but such as shall stand with order of the Law, and 
your conscience; you shall scale all such Processe as 
you shall sue out of the Court with the Scale thereof, and 
so the Kings Majesty, and my Lord Chiefe Justice dis- 
charged for the same ; yee shall not wittingly nor 
willingly sue, nor procure to be sued any false Suit, nor 
give ayde, nor consent to the same, in paine to be 
expulsed from the Court for ever; And furthermore, 
you shal use your selfe in the Office of an Attorny 
within the Court according to your Learning and dis- 
cretion ; so helpe you God, etc. 

A second edition of this book was printed in 1689, and 
contains the Attorney's Oath in the same form. 

The following oaths of office taken from the Book of 
Oaths in the office of the Clerk of the Crown and the Petty 
Bag in Chancery, now deposited in the Record Office, are of 
interest as conforming substantially to the Oaths of the 
King's Serjeants and the Serjeants at Law : 

King' s Counsel. 
Ye shall Swear, That well and truly ye shall serve the 
King as one of his Council learned in the Law, and 



31 

truly counsel the King in his Matters when ye shall be 
called, and duely and truely minister the King's Matters 
and sue the King's Process after the Course of the Law, 
and after your Cunning; ye shall take no Wages nor 
Fee of any Man for any Matter against the King, where 
the King is Party ; ye shall duely, in convenient Time, 
speed such Matters as any Person shall have to do in 
the Law against the King, as ye may lawfully do, with- 
out long Delay, tracting or tarrying the Party of his 
lawfull Process in that that to you belongeth ; ye shall 
be attendant to the King's Matters when ye shall be 
called thereto; as God you help, and by the Contents of 
this book. 

Attorney General. 
Ye shall Swear, That well and truly ye shall serve the 
King as his Attorney General, in all his Courts of 
Record, within the Kingdom of Great Britain and truly 
counsell the King in his Matters when ye shall be called, 
and duly and truly minister the King's Matters, and sue 
the King's Process after the Course of the Law, and 
after your Cunning; ye shall take no Wages nor Fee 
of any Man for any Matter against the King, where the 
King is Party; ye shall duely, in convenient time, speed 
such Matters as any Person shall have to do in the Law 
against the King, as ye may lawfully do without long 
delay, tracting or tarrying the Party of his lawful Process 
in that, that to you belongeth; ye shall be attendant to 
the King's Matters when ye shall be called thereto ; as 
God you help, and by the Contents of this Book. 

Solicitor General. 
Ye shall Swear, That well and truly ye shall serve the 
King as his Solicitor General in all his Courts of Record 
within the Kingdom of Great Britain, and truly counsell 



32 

the King in his Matters when ye shall be called, and 
duly and truly minister the King's Matters, and sue the 
King's Process, after the Courses of the Law, and after 
your Cunning; ye shall take no Wages nor Fee of any 
Man, for any Matter against the King, where the King 
is Party; ye shall duely, in convenient Time, speed 
such Matters as any Person shall have to do in the Law 
against the King, as ye may lawfully do, without long 
Delay, tracting or tarrying the Party of his lawful! 
Process, in that, that to you belongeth ; ye shall be 
attendant to the King's Matters when ye shall be called 
thereto ; as God you help, and by the Contents of this 
Book. 

There is much curious learning in the early English Law 
with regard to serjeants-at-law, apprentices and barristers. 
Fortescue, who was Chief Justice to Henry VL, in " De Laiidi- 
bus Legiim Angliac," devotes a chapter to the " State, 
Degree and Creation of a Serjeant-at-Law," in which he 
says at the end : 

" There is not, in any other Kingdom or State, any 
particular Degree confer'd on the Practisers of tne Law 
as such ; unless it be in the Kingdom of England. 
Neither does it happen, that in any other Country, an 
Advocate enriches Himself so much by his Practice as 
Serjeant at Law. No one, be he never so well read 
and practised in the Laws, can be made a Judge in the 
Courts of Kings Bench, or the Co^nmon Pleas, which 
are the Supreme Ordinary Courts of the Kingdom, 
unless He be first called to be a SERJEANT AT LAW: 
Neither is any one, beside a SERJEANT, permitted to 
plead in the Court of Common Pleas, where all real 



33 

Actions are pleaded : Wherefore, to this Day, no one 
hath been advanced to the State and Degree of a SER- 
JEANT AT Law, till He hath been first a ( i ) Student, 
and a Barrister, full Sixteen Years : Every Serjeant 
wears in Court a White Silk Coif, which is a Badge that 
they are Graduates in Law, and is ike Chief Ensign of 
Habit with which SERJEANTS AT Law are distinguished 
at their Creation. Neither shall a Judge, or a SERJEANT 
AT Law, take off the said Coif, tho' he be in the Royal 
Presence and talking with the King's Majesty." 

In the notes upon Fortescue, in the edition of 1741 it is 
said : 

" It may be objected here that our Author makes no 
mention of Student or Barrister, neither is it precisely 
known whether, at that Time, the Degree of Barrister 
was confer'd or not, but it is very probable that the 
same regular Steps might be taken, in order to qualify 
Persons to practice in the Courts of Law, as have been 
observed since that Time. The Reason is the same. 
Mr. Selden, in his Note ad Cap. VIII. (2) makes men- 
tion of the Students in the Civil Law of 2, 3, 4 and 5 
Years standing, and seems to hint that an APPRENTICE 
AT Law is a Degree; He quotes i Ed. 3 fol. 17, a. pi. 
3, also a Monument of Parliament 20 Ed. i. Fleta, 
lib. 2. cap. 37, and the Epistle of the 9 Reports, where 
more is out of Antiquity touching these APPRENTICES, 
whom I judge to be, what they now call, BARRISTERS." 

Also that 

" Serjeant at Law imports one who attends the Service 



34 

of the King and his People in the Study, Profession and 
Practice of the Law : A State and Degree in the Law, 
out of which, as the Seminary of Justice, the Judges are 
called ; for none but a Serjeant at Law can be a Judge 
of either Bench, or Chief Baron of the Exchequer. The 
Honour of Serjeancie is a Title, State and Dignity of 
great Respect, as appears from the King's Writ, or 
Patent of his Creation. The Lord Coventry, in his 
Speech at the Creation of Serjeants, says, ' It is a very 
ancient State and Degree, so ancient, that Books are as 
silent in it as in the Commencement of the Common 
Law its self.' " * 

The order of serjeants-at-law was so well established that 
Chaucer introduced a serjeant-at-law into that company of 
Pilgrims whom he made to set out from the Tabard Inn in 
Southwark, in 1383, as follows: 

" A Serjeant of the Law, prudent and wise, 
That had often been at consultation, f 
There was also, ful rich of excellence. 
Discreet he was and of great reverence; 
He seemed such, his words were so wise. 
Justice he was full often at Assise, 
By patent and by pleine commission : 
For his science and for his high renown. 

• De Laudibus Legum Angliae. Notes of Selden, etc. Edition 1741, pages 113, 
115, 116. See also Antiquities of the Inns of Court and Chancery (Herbert), page 358, 
et seq.\ Order of the Coif (Pulling); Observations Touching the Antiquity and 
Dignity of the Degree of Serjeant-at-Law (Wynne) ; Lives of the Chancellors 
(1712) Vol. IL; Whitelocke's Memorials. 

fThe original reading is "at the parvis," meaning the porch of St. Paul's or of 
Westminster Abbey, where lawyers were wont to meet their clients for consultation. 
In this case, as in some others in the passage, I have ventured to put, in place of the 
original words, a modern form, more easily understood now, but which, I trust, pre- 
serves the author's meaning. 



35 

Of fees and robes had he many an one; 

So great a conveyancer was nowhere known. 

All was fee simple to him in effect, 

His conveyancing could not be attacked. 

Nowhere so busy a man as he there was, 

And yet he seemed busier than he was. 

In terms had he cases and decisions all 

That from the time of King William had been given; 

Thereto he could endite and make a thing, 

There could no wight cavil at his writing; 

And every statute knew he fully by rote 

He rode but homely in a motley coat 

Girt with a sash of silk with small bars." 

When the degree of a serjeant-at-law was conferred, it was 
the custom for the Lord Commissioner appointed by the 
King to confer it, to address the candidates upon the charac- 
ter of their office and its duties. The address of Lord Com- 
missioner Whitelocke to the new serjeants-at-law, November 
1 8, 1648, when they appeared at the Chancery Bar to take 
upon them the degree, states the nature of the lawyer's office 
and its duties as then understood. He said: 

" I hold it not impertinent to mention something to you of 
the duties of an advocate ; which are some of them to the 
courts and some to the clients. 

" To the courts of justice he owes reverence, they being 
the high tribunals of law, of which Doctor and Student, and 
the statute of Marlebridge saith, Omnes, tam majores quam 
minores, justitiam recipiant;* and therefore great respect 
and reverence is due to them from all persons, and more 
from advocates than from any other. 

" 2. An advocate owes to the court a just and true 

* Let all, as well the greater as the smaller, receive justice. 



36 

information. The zeal of his client's cause, as it must not 
transport him to irreverence, so it must not mislead him to 
untruths in his information of the court. The statute of 
Will. I, Chap. 29, and the Mirrour of Justices, agree in 
an excellent direction in this point. 

" ' When a good cause is destroyed by misinformations or 
unlawful subtleties or deceits, let the instruments thereof 
take heed of the wo denounced by the Prophet against them 
that call good evil and evil good, that put darkness for 
light and light for darkness, their root shall be rottenness, 
and shall go up as dust.' 

" Remember that in your oath for one verb [you shall 
serve] you have two adverbs [well and truly]. 

" The duties of advocates to their clients are general and 
particular. 

" The general consist in three things, — secrecy, diligence, 
and fidelity. 

" I. For secrecy: advocates are a kind of confessors, and 
ought to be such, to whom the client may with confidence 
lay open his evidences, and the naked truth of his case, sub 
sigillo, and he ought not to discover them to his client's 
prejudice ; nor will the law compel him to it. 

"2. For diligence : much is required in an advocate in 
receiving instructions, not only by breviats, but by looking 
into the books themselves, in perusing deeds, in drawing 
conveyances and pleas, in studying the points in law, and in 
giving a constant and careful attendance and endeavour in his 
clients' causes. 

"3. For fidelity: it is accounted vinculum societatis. 
The name of unfaithfulness is hateful in all ; and more in 
advocates than others, whom the client trusts with his liveli- 



37 

hood, without which his Hfe is irksome; and the unfaithful- 
ness or fraud of the one is the ruin of the other. 

" Virgil, in his fiction of yEneas going down to Hell, sets 
these in the front of crimes, — 

" Hie, quibus invisi fratres, dum vita manebat, 
Pulsatusve parens, &i frans innexa clienti, 
Inclusi poenam expeetant." * 

" For your duty to particular clients you may consider, 
that some are rich, yet with such there must be no endeavour 
to lengthen causes, to continue fees. Some are poor, yet 
their business must not be neglected if their cause be honest; 
they are not the worst clients, though they fill not your 
purses, they will fill the ears of God with prayers for you, 
and he who is the defender of the poor will repay your 
charity. Some clients are of mean capacity; you must take 
more pains to instruct yourself to understand their business. 
Some are of quick capacity and confidence, yet you must not 
trust to their information. Some are peaceable, detain them 
not, but send them home the sooner. Some are contentious, 
advise them to reconcilement with their adversary. Amongst 
your clients and all others, endeavour to gain and preserve 
that estimation and respect which is due to your degree, and 
to a just, honest, and discreet person. Among your neigh- 
bours in the country, never foment but pacify contentions." 

" And what honour and advantage hath been gained by 
any the most eminent of your predecessors in this degree, I 
do heartily wish may be multiplied unto you." f 

* Here, those who, while alive, hated their brothers, beat their parents, or defrauded 
their chents, imprisoned, await punishment. 

t Whitelocke's Memorials, 352-3-4-5. Manning's Serjeants' Case, pages 222-3-4-6. 



38 

Upon this foundation of the English law and this concep- 
tion of the lawyer's office in England, the office was estab- 
lished in the Colonies and Provinces of England in North 
America. 

An examination of the legislation as to attorneys in the 
Colonies which became the thirteen original States of the 
Union, shows how the attorney's office was recognized and 
established here. 

It should be borne in mind, however, in considering this 
legislation that by the ancient English common law no per- 
son had a right to appear in Court by an attorney. A liti- 
gant could advise with and retain the " man of lawe," who 
might lawfully " stand by him " as his counsel, but could 
not represent him in all the responsibilities of litigation, 
devolved on the suitor, in propria persona. 

In the Harleian MSS. in the British Museum (298, fo. 56), 
is the following entry of a plea pleaded by Serjeant Marshall 
in an action (the nature of which does not appear), pending 
in the King's Bench at Oxford, T. 25 Edw. I. : " And then 
Thomas le Mareschall says, that he is a common serjeant- 
countor before justices and elsewhere, wherever he can be 
most serviceable in his office of a common serjeant-countor 
(coram justiciariis, et alibi, ubi melius ad hoc conduci 
poterit), and that he, in the plea of the said assise, stood 
with * the said John before the said justices, and assisted him 



* A German equivalent for advocate, used even to this day, is Rechtsbeistand ; liter- 
ally, he who stands by (another) in matters of justice and law. 

Moriz Heyne, Deutsches Worterbuch, Volume 3 (1895), column 49, says : 

Rechtsbeistand (i) = Beistand in einer Rechtssache : einen Rechtsbeistand leisten ; 
(2) = Person die solchen leistet, e.g., Rechtsbeistand sein ; einen Rechtsbeistand 
mitbringen. 

Literal translation : 

Right-stand-by (1) = stand-by {i.e., help) in a matter of law, as e.g., to give legal 



39 

herein, as much as he could, as his serjeant (tanquam 
serviens suus), and as it is lawful for such Serjeants in such 
cases (et sicut talibus servientibus in hujusmodi casibus, 
licet)." 

In the Abbreviatio Placitorum in Domo Capitulari Westm, 
asservat. 295 b, is the following entry, respecting an advo- 
cate in the ecclesiastical courts: "Master William de 
Helmeswell, and Master John de Maldone ; were attached to 
answer William de Welleby of a plea of conspiracy. 
And Master John says that he is a commojt advocate, and 
stpod with the said Master William for his giving (quod est 
communis advocatus, et stetit cum predicto Magistro 
Willielmo, pro suo dando), against the said William de 
Welleby. Master William says, that he caused him to be 
cited for another trespass, and not for the first. But, by the 
jury, — he is guilty, to the damage of the said William de 
Welleby of twenty-four marks. And Master John is 
acquitted, because he is a common advocate." * 

According to the old Gothic constitution every suitor was 
obliged to appear in person ; and by the ancient common 
law of England a party plaintiff or defendant could not 



assistance. (2) = the person who performs such duty, e.g., to be a right-stand-by ; to 
bring along (into court) a right-stand-by. 

In other words, Rechtsbeistand means (i) legal assistance, and (2) legal assistant, 
i.e., legal representative or standby of another person in court. 

Grimm, Deutsches Worterbuch, Volume 8 (1893), column 424: 

Rechtsbeistand : ( i ) Beistand, der bei einer Rechtshandlungoder vor Gericht geleistet 
wird. The formula in legal documents is : Vor dem Notar N. erscheint die Ehefrau N. 
unter Rechtsbeistand ihres Ehegatten. (2) Person, die einen solchen Beistand leistet : 
thus, sein Rechtsbeistand, der Anwalt N. 

Translation : 

Right-stand-by. (i) Assistance given in a legal action or in court. The formula in 
legal documents runs thus : Before the Notary N. appears the wife N. with the legal 
assistance of her husband. (2) Person who gives such assistance: thus, his right 
stand by (legal adviser), the attorney N. 

* Serviens ad Legem, James Manning, page 170. 



40 

appear in Court bj' an attorney without special authority 
from the King, by writ or otherwise. But when a party had 
made his personal appearance, any Court which had juris- 
diction by writ, might permit the party to appear by attor- 
ney, and a Court which held jurisdiction without a writ 
might admit an attorney if the King permitted, but not 
otherwise, * 

This probably was the reason why in the early colonial 
statutes the right of parties to appear by attorneys was 
expressly given. It is true that there were men of law, 
and pleaders, as they were called, in England from time 
immemorial, and when William the Conqueror in order to 
obtain an authentic record of the laws and customs of Eng- 
land called together a body of English nobles, he also called 
with them English lawyers to report on the subject ; but it 
was not until after the Conquest when justice was adminis- 
tered in England in a form as well as a language unknown 
to the English, that the employment of lawyers to represent 
suitors became absolutely necessary. It was then that the 
English word *' pleader " gave way to the Norman word 
" conteur," or in English " countors," and the profession of 
the law was placed under legal rules of conduct. 

It is interesting to note, however, that in the early days of 
the English law the lawyer stood in direct relation to his 
client, as is now the case in the United States. The modern 
English Barrister has no clients. He recognizes only Solici- 
to rs through whom alone the client can communicate with 
him. But the ancient English lawyer knew no solicitor or 
middle man. He communicated directly with his client at 
his chambers, at the Parvis, in the Court, or wherever he 

*Stjernho6k de Jur. Goth I. i, c. 6; 8 Coke, 58, b. ; Maugham on Attornies.page 6 . 



41 

could best serve him, and served him in any capacity he 
could, either as counsel, draftsman, or advocate.* 

The administration of justice was probably quite as well 
served by this simple relation of lawyer and client as it is by 
the complicated and expensive methods of the English prac- 
tice now. 

Parties were first permitted to appear by attorneys by the 
Statute of Merton,f A.D. 1235, in certain cases. 

In 1275 ^ by the Statute Primer Westminster, appearance 
by attorneys was recognized and extended. 

In 1278,^ 1285,^ 1318,^ 1322,^ 1383^ statutes were passed 
extending the right to appear by attorneys, and in 1402 the 
first act was passed providing for the admission of attorneys 
by the Courts upon examination and the administration of 
an official oath, and also for the regulation by the Courts of 
the conduct of attorneys.^ 

By the ancient statutes attorneys were required to appear 
in Court in person at stated periods, and if they did not for 
two years give due attendance in any case or matter they 
were put out of the roll and could not practice until they 
were again admitted. The reason of this doubtless was that 
it was thought attorneys ought not to practice in the Courts 
unless they kept themselves practically qualified for the 
duties of their office. 

The legislation in the different States as to the lawyer's 
oath has been substantially as follows : 

* Pulling, Order of the Coif, page 71. 
t20 Hen. 3, St. Merton, c. 10. 

1 3 Edw. I, St. I Westm., c. 29. 

2 6 Edw. I, St. Gloucester, c. 8. 

3 13 Edw. I, St. I, Westminster 2, c. 10. 
< 12 Edw. 2, St. I, c. I. 

Statute of Carlisle, 15 Edw. 2, st. i. 
I"' 7 Richard 2, c. 14. 
X4 Hen. 4, c. 18. 



42 



IN CONNECTICUT. 

The la\v\-er's office was recognized and an official oath 
prescribed in Connecticut in May, 1 708, by an act as follows: 

" For the better regulating proceedings and pleas at 
the bar of the several countie courts or courts of assist- 
ants within this government, 

" // is ordeined by this Court and the authoritie 
thereof, That no person, except in his own case, shall 
be admitted to make any plea at the bar, without being 
first approved of by the court before whom the plea is 
to be made, nor until he shall take in the said court the 
following oath, viz. : 

" You shall do no falshood, nor consent to any to be 
done in the court, and if you know of any to be done 
you shall give knowledge thereof to the justices of the 
court, or some of them, that it may be reformed. You 
shall not wittingly and willingly promote, sue or procure 
to be sued any false or unlawful suit, nor give aid or 
consent to the same. You shall delay no man for lucre 
or malice, but you shall use yourself in the office of an 
Atturney within the court according to the best of your 
learning and discretion, and with all good fidelitie, as 
well to the court as to the client. So help you God." * 

This form of oath was included in the Forms of Oaths 
Prescribed and established in 1729. f 

*Conn. Colony Records, Vol. 5, page 48. 

t Acts and laws of Connecticut in New-England in America. Edition of 1750, 
page 180. General Assembly held at New-Haven on the 9th of October, 1729. 



43 

The form now in use is substantially the same. It is as 
follows : 

" You solemnly swear that you will do no falsehood, 
nor consent to any to be done in court, and if you know 
of any to be done, you will give information thereof to 
the judges, or one of them, that it may be reformed ; 
you will not wittingly or willingly promote, sue, or cause 
to be sued, any false or unlawful suit, or give aid, or 
consent, to the same ; you will delay no man for lucre 
or malice ; but will exercise the office of attorney, 
within the court wherein you may practice, according to 
the best of your learning and discretion, and with fidelity, 
as well to the court as to your client ; so help you 
God." * 



♦General Statutes of Conn., 1902, Section 4795. 



44 



IN DELAWARE. 

In 1704 the admission of lawyers and their oath of office 
were provided for by " An Act about Attornies and Solici- 
tors," as follows : 

For preventing abuses and irregularities in all and every 
the courts within this her Majesty's government, and 
that all Attornies and Solicitors practising therein may 
be duly qualified to execute and perform the trust in 
them reposed : 

Section i. Be it enacted by the honorable John Evans, 
esq. with her Majesty's royal approbation Lieutenant Gov- 
ernor of the counties of New-Castle, Kent, and Sussex, upon 
Delaware, and province of Pennsylvania, by and with the 
advice and consent of the freemen of the said counties, in 
General Assembly met, and by the authority of the same, 
That before any Attorney, Solicitor, or other person whatso- 
ever, shall be admitted to plead for any reward or fee in any 
of the courts of this her Majesty's government, such 
Attorney, Solicitor, or other person as aforesaid, shall take 
the oaths, and repeat and subscribe the declaration pre- 
scribed by act of Parliament in England;* and shall take 
the oath hereafter mentioned, viz. You shall do no false- 
hood or deceit, nor consent to any to be done, in this court, 
to your knowledge ; and if you know of any to be done, you 
shall give knowledge thereof to the Chief Justice, or any 
other the justices of this court, that it may be reformed : 
You shall delay no man for lucre or malice, having reason- 

*An act for the security of her majesty's person and government, and of the 
succession to the crown of Great-Britain in the protestant line. 



45 

able fees first allowed you for the same : You shall plead 
no foreign plea, nor sue any foreign suits, unlawfully, to the 
hurt of any man, but such as shall (according to your judg- 
ment) stand with the order of the law and your own con- 
science: You shall not wittingly or willingly sue, or procure 
to be sued, any false suits, nor give aid or consent to the 
same, on pain of being expulsed from this court for ever. 
And further. You shall truly use and demean yourself in the 
office of an attorney within this court, according to your 
learning and discretion. So help you God.* 

In 1 72 1 this form of oath was changed by 

An Act for the establishing courts of law and equity within 
this government, as follows : 

That there may be a competent number of 
persons of an honest disposition, and learned in the law, 
admitted by the justices of the said respective courts, to 
practice as Attornies there, who shall behave themselves 
justly and faithfully in their practice, and before they are so 
admitted, shall take the following qualification, — 

Thou shalt behave thyself in the Office of an Attorney 
within the court according to the best of thy learning and 
ability, and with all good fidelity as well to the court as to 
the client: Thou shalt use no falsehood, nor delay any 
person's cause through lucre or malice. 

Sect. 27. And if they misbehave themselves therein, they 
shall suffer such penalties and suspensions as Attornies at 
Law in Great Britain are liable to in such cases. By which 
Attornies actions may be entered, and writs, process, decla- 

* Laws of the State of Delaware. Edition of 1797, Vol. i, Chap. XIII., Sect, i, 
1704. 



46 

rations and other pleadings ; and records in all such actions 
and suits as they shall respectively be concerned to prosecute 
or defend from time to time, may be drawn, and with their 
names and proper hands signed; which said Attornies, so 
admitted, may practice in all the courts of this government, 
without any further or other licence or admittance. 

Sect. 28. Provided always. That no person, not being an 
inhabitant of this government, or of the province of Pennsyl- 
vania, shall be permitted to plead in any court or courts 
within this government, without licence first obtained from 
the Governor for the time being, by the recommendation of 
the Justices of one of the County Courts of this government; 
unless such lawyer or law}'ers shall obtain the court's leave, 
and pay to the said court, for the use of the Governor, the 
sum of Fifty Shillings for each court he shall so plead, until 
licensed.* 

The present law as to admission and oath of Attorneys 
is as follows : 

" There may be a competent number of persons, of an 
honest disposition and learned in the law, admitted by the 
judges of the respective courts to practice as attornies there, 
who shall behave themselves justly and faithfully in their 
practice; and if they misbehave themselves therein, they 
shall suffer such penalties and suspensions as attornies at 
law in Great Britain are liable to. Such attornies may enter 
actions, prosecute and defend suits, draw writs, process and 
pleadings, and practice generally in all the courts of this 
State without further license. 

* Laws of the State of Delaware. Edition of 1797, Vol. i. Chap. LI V., Sect. 26, 27, 
28. 1721. 



47 

" Every attorncy-at-law shall, in like manner, besides the 
constitutional qualifications, make the following affidavit: 

" ' I do solemnly swear (or 

affirm) that I will behave myself in the office of an 
attorney within the court, according to the best of my 
learning and ability and with all good fidelity, as well to 
the court as to the client; I will use no falsehood, nor 
delay any person's cause through lucre or malice. So 
help me God (or so I affirm).' " * 

The present provision as to the admission or obligation of 
attorneys is the same as provided by the Act of 1721, and 
the oath is the same, but in addition there is required an 
oath to support the Constitution of the State. | 



* Revised Statutes of Delaware, 1893, Chap. XCII., page 698; Chap. XXIV., Sect. 4. 
t Laws of Delaware, Revised Code, 1893, pp. 234, 698. 



48 



IN GEORGIA. 

The following sections of the English act of 1729 " For 
the Better Regulation of Attorneys and Solicitors," * were 
treated as in force in Georgia in 1731 : 

" XIII. And it is hereby further enacted by the authority 
aforesaid, That every person who shall, pursuant to this act, 
be admitted and enrolled to be an attorney in the said courts 
of king's bench, common pleas, exchequer, great sessions in 
Wales counties palatine of Chester, Lancaster and Durham, 
or any inferior courts of record wherein attorneys have been 
accustomably admitted and sworn, shall, before he is 
admitted and enrolled as aforesaid, take and subscribe the 
oath following, instead of the oath heretofore usually taken 
by the attorneys of such courts respectively. 

" ' I, A. B. do swear, that I will truly and honestly demean 
myself in the practice of an attorney, according to the best 
of my knowledge and ability, so help me God.' 

" XIV. And it is hereby further enacted by the authority 
aforesaid. That every person who shall, pursuant to this act, 
be admitted and enrolled to be a solicitor in the said high 
court of chancery, or in any of the other courts of equity 
aforesaid, shall, before he shall be so admitted and enrolled, 
take and subscribe the oath following, viz. : 

" ' I, A. B. do swear, that I will truly and honestly demean 
myself in the practice of a solicitor, according to the best of 
my knowledge and ability, so help me God.' 

" Remainder of this statute not in force. 2nd year of 
George II., A.D. 1729."! 

* English Statutes at large, Vol. 4, page 654. 

t Schley's Digest of the English Statutes in force in the State of Georgia. Edition 
of 1826, page 353. 



49 

In 1789, after Georgia became a State, the admission of 
attorneys was provided for in 

" An act regulating the judiciary departments of this State," 
as follows : 

" LXV. And be it enacted. That no person shall be 
allowed to practice or plead in any of the superior or inferior 
courts, until examined in open court, and admitted by one or 
more of the judges of the superior court: Provided, That 
the persons heretofore admitted shall not be deprived by 
this act from practicing in either court; but the justices may 
suspend, and the judges or either of them may try an attor- 
ney for malpractice in his profession. And all fines, for- 
feitures and penalties imposed by this or any other act, shall 
be recovered in the most usual or summary way."* 

The Superior Courts of Georgia were vested with jurisdic- 
tion both in law and in equity, and as the same persons acted 
both as attorneys and solicitors in those Courts, the oaths 
prescribed by the English statute of 1729 were amalgamated, 
and the Judges of the Superior Court in convention pre- 
scribed the following form as an oath to be administered to 
all persons admitted to practise law: 

" I, A. B. do solemnly swear [or affirm as the case may 
be] that I will justly and uprightly demean myself according 
to law, as an attorney, counsellor, and solicitor," to the best 
of my knowledge and ability; " and that I will support and 
defend the constitution of the United States, and the consti- 
tution of the state of Georgia — So help me God." 

* Digest of the laws of Georgia. Edition of 1801, page 406. 



50 

For some time after Georgia became a State, attorneys 
from other States were not admitted to practice until they 
had resided in Georgia two years. But in 1795 it was pro- 
vided that attorneys at law who were citizens of and had 
been regularly admitted to the practice of the Superior 
Courts of law and equity in other States should, on com- 
plying with the other regulations required by the laws of 
Georgia for the admission of attorneys, be admitted to prac- 
tice without having resided two years within the State of 
Georgia. 

But the act which allowed this provided specifically that 
" no attorney or attornies shall be allowed to practise 
in the courts of this state, as aforesaid, unless he or they do 
actually reside within the limits of the same. Provided also. 
That such applicants from other states, shall previous to 
their admission in this state, produce to the judge or judges 
of the superior courts of this state, a certificate of his regular 
admission to the superior courts in the state from which such 
applicants may come, together with a certificate of his fair 
moral and professional character, duly certified under the 
seal of the state where he shall have been admitted, and 
shall also undergo a strict examination as to his professional 
abilities, before a judge or judges of the superior court."* 

The rules of Court as to the admission of attorneys origi- 
nally provided that no person could be admitted to practise 
as an attorney without having studied a certain time in the 
office of some Judge or practitioner of law in Georgia, but in 
1806 an act was passed which provided that any citizen of 
Georgia might on application to the Judge of the Superior 

* Digest of the laws of Georgia. Edition of 1802, page 41, 



SI 

Court be admitted to practice " Provided, such person shall 
produce satisfactory evidence of his moral rectitude, and 
shall undergo an examination in open court, upon a day 
assigned for that purpose, by the judge." * 



* Compilation of the Laws of Georgia, 1800-1810. Edition of 1813, page 331. 



52 



IN MARYLAND. 

An act was passed in Maryland in 17 14 regulating the 
fees and conduct of attorneys as follows : 

" And be it further Enacted by and with the 
Authority, Advice and Confent aforefaid, That all 
Attornies practifing in the feveral County Courts of this 
Province, fhall have for their Fee in any Caufe, where 
the real Debt fued for, or the Balance recovered, 
exceeds the Sum of Ten Pounds Sterling, or Two 
thousand Pounds of Tobacco, the Sum of Two hun- 
dred Pounds of Tobacco ; and that any Attorney prac- 
tifmg in the faid Courts, that fhall refufe to profecute 
or defend the Caufe of any Perfon or Perfons making 
Application to him (unlefs before retained) having the 
faid Fee paid, or fecured to be paid to him. or that fhall 
ask, receive, or demand in any fuch Action, by any 
Colour or Pretext whatfoever, more than the faid Fee, 
fhall forfeit and pay the Sum of Five hundred Pounds 
of Tobacco ; One Half thereof to our Sovereign Lady 
the Queen, for the Support of the Government, the 
other Half to him or them that will fue for the fame, 
to be recovered by Action of Debt, Bill; Plaint, or 
Information, wherein no Effoign, Protection, or Wager 
of Law to be allowed ; and upon Conviction thereof to 
be fufpended his Practice in the faid Court, for and 
during One whole Year."* 

The admission of attorneys was regulated in Maryland in 
171 5 by 

* Acts of Assembly, passed in the Province of Maryland, from 1692 to 1715, page 83. 



S3 

" An Act for rectifying the ill practices of attornies of this 
province, and ascertaining fees to the attorney-general, 
clerk of indictments, attornies and practitioners of the 
law in the courts of this province, and for levying the 
same by way of execution," as follows : 

Sect. XII. And be it further enacted, by the authority, 
advice and consent aforesaid, That from and after the end of 
this present session of the assembly, no attorney, or other 
person whatsoever, shall practise the law in any of the courts 
of this province, without being admitted thereto by the 
justices of the several courts, who are hereby empowered to 
admit and suspend them (salvo jure corona;) until his 
majesty's pleasure shall be known therein ; but any attorney, 
or any other person practising the law in this province, or 
the Plaintiff that shall sue in any county court where he 
does not reside, shall be obliged to give security for the pay- 
ment of all the officers fees that shall accrue upon any suit 
by him to be commenced, either at the time of the issuing 
of the writ in the action, or during the continuance of the 
court to which such writ shall be returned, on pain of pay- 
ing such fees himself, or suffering his client to be nonsuited, 
in default of such security to be given, or of such attorney 
signifying his intention to pay such fees, any law, statute, 
usage, custom, rule of court, or order from any persons to 
the contrary notwithstanding. 

Sect. XIII. Provided always. That nothing in this act 
shall extend, or be construed to extend, to give right to any 
courts of this province to admit any attorney, or other 
person practising the law, to practise in any court that 
has been already refused so to do by his excellency, and his 



54 

majesty's honourable council, nor to any person that shall not 
qualify himself by taking the oaths appointed to be taken by 
act of parliament made in the sixth year of the reign of her 
late majesty, of pious memory, entitled An act for the secur- 
ity of her majesty's person and government, and of the 
succession to the crown of Great-Britain in the protestant 
line.* 

Admission to practice is now by the Court of Appeals 
under statutory provisions and the oath required by law is as 
follows : 

" Every attorney or other practitioner at law shall in open 
court take and prescribe the following oath or affirmation: I 
do solemnly swear (or affirm) that I will at all times demean 
myself fairly and honorably as an attorney and practitioner 
at law ; that I will bear true allegiance to the State of Mary- 
land, and support the laws and constitution thereof, and that 
I will bear true allegiance to the United States, and that I 
will support, protect and defend the constitution, laws and 
government thereof as the supreme law of the land ; any law 
or ordinance of this or any State to the contrary notwith- 
standing." 

The conduct of attorneys is also specifically regulated by 
the following statutory provision : 

" The judges of the several courts of this State shall 
observe the demeanor of all attorneys practising the law 
before them, who shall use any indecent liberties to the 
lessening the grandeur and authority of their respective 

*The Laws of Maryland. Edition of 1811, Vol. i, Chap. XLVIIL, Sects. 12, 13. 



55 

courts, and shall discountenance and punish the same accord- 
ing to the nature of the offense, either by suspending such 
attorney from his practice perpetually, or for a time, or by 
fine (at the discretion of the court) not exceeding fifty 
dollars for any one offense." * 



* The Maryland Code, 1904, Article X., pages 288-9. 



56 



IN MASSACHUSETTS. 

It was many years after the Massachusetts Bay Colony 
was settled before a distinct class of attorneys-at-law was 
known. It is said to have been doubtful if there were any 
regularly educated attorneys-at-law who practised in the 
Courts of the Colony at any time.* The Colonists attempted 
to found a pure theocracy, and regarded the Bible as their 
statute-book, and the ministers as their lawyers. But by the 
Body of Liberties, the Massachusetts Magna Charta, of 1641, 
it was specially declared that 

" Every man that findeth himselfe unfit to plead his 
owne cause in any Court shall have Libertie to imploy 
any man against whom the Court doth not except, to 
helpe him. Provided he give him noe fee or reward for 
his paines." f 

The want of suitable attorneys to present the cases of 
parties to the Courts led to the practice of parties going to 
the magistrates in person and stating their cases ex parte. 
And when an attempt was made to prevent this by law, it 
was opposed because parties would then be obliged to 
employ lawyers to present cases in Court. % 

In 1649, however, a law was passed forbidding such con- 
duct under penalties. § 

The Colonists, however, were litigious people and if they 
could not find attorneys to present their cases they pre- 

• Washburn, Judicial History Mass., page 50. 
t Body of Liberties, Liberty No. 26, Whitmore Reprint, page 39. 
X 2 Winthrop's History, 36. 

^s Colony Laws, Edition 1814, Chap. 30 [p. 87] ; Colonial Laws, Mass., Whitmore 
Edition, page 34. 



57 

sented them themselves, and so consumed the time of the 
Court and multiplied its business that in 1656 an act was 
passed providing that 

" This court, taking into consideration the great 
charge resting upon the colony, by reason of the many 
and tedious discourses and pleadings in court, both of 
plaintifif and defendant, as also the readiness of many to 
prosecute suits in law for small matters. It is therefore 
ordered, by this court and the authority thereof, that 
when any plaintiff or defendant shall plead, by himself 
or his Attorney, for a longer time than one hour, the 
party that is sentenced or condemned shall pay twenty 
shillings for every hour so pleading more than the com- 
mon fees appointed by the court for the entrance of 
actions, to be added to the execution for the use of the 
country." * 

The first direct regulation of lawyers in the Colonial Laws 
of Massachusetts is found in an order by the General Court 
in 1663 that " no person who is an usual and common 
Attorney in any Inferior Court, shall be admitted to sit as a 
Deputy in this Court." 

This was because cases could then be taken by appeal 
from the inferior courts to the General Court, and it was not 
deemed proper that a common attorney in the inferior court 
should be a member of the General Court which passed 
upon the appeals from the Court in which he practised. 

In 1673 it was ordered that any person might sue " by 
his lawful Attourny Authorized under his Hand and Scale, 

* Washburn, Judicial History Mass., pages 52, 53. 



58 

and legally proved to be his Act and Deed " in any courts, 
and in 1679, that a Town could implead any person in a 
cause at law and choose their attorney by a vote without 
the necessity for a power of attorney under seal as in 
ordinary cases.* 

In 1692 the act for the establishment of courts in the 
Province of Massachusetts Bay, which was disallowed by the 
Privy Council August 22, 1695, provided that the Justices 
of the several courts should have power to make necessary 
rules and orders for practice and proceedings therein, that 
all proceedings should be in the English tongue and no 
other, and that every plaintiff or defendant in any courts 
might " plead and defend his own cause in his proper per- 
son, or with the assistance of such other as he shall pro- 
cure, being a person not scandalous or otherwise offensive to 
the court." f 

In 1697 another act was passed for the establishing of 
courts, which was disallowed by the Privy Council November 
24, 1698, with an additional provision that " attourney's fees 
to be allowed at the superiour court of judicature shall be 
twelve shillings and at the inferiour court ten shillings and no 
more; and but one attourney to be paid for in any case." X 

In 1699 another act for the regulating and directing pro- 
ceedings in Courts of Justice was passed, which was dis- 
allowed by the Privy Council October 22, 1700. This act 
contained the same provision as to attorneys as the act of 

i697-§ 

The Attorney's oath as it was in use in England was adopted 

* Mass. Col. Laws, 1672-1678, Whitmore Ed., pages 41, 211, 266. 
t Province Laws, 1692-1714, Vol. L, page 75. 
+ Province Laws, 1692-1714, Vol. L, page 287. 
§ Province Laws, 1692-1714, Vol. L, page 374. 



59 

by the Court in Massachusetts certainly as early as July 27, 
1686. This appears by the following record : 

" At his Majesty's Court of Pleas and Sessions of the 
Peace holden in Boston for Suffolk on ye 27th of July 
1686 anno RRis Jacob! Angl** &c'' Secundi Secundo. 

" Present — Wm Stoughton Esq. Judge; 

" John Pynchon, Wait Winthrop, Edw'' Randolph, 
Richard Wharton, John Usher, Esqrs. 

"John Richards, Esq., Simon Lynd, Assistants. 

" Benj'^ Bullivant Esq'' being appointed Attorney Gen- 
erall Mr. Giles Master Mr. Anthony Checkley Mr. 
John Watson and . . . Capt Nathaniel Thomas and 
Mr, Christopher Webb being admitted attourneyes had 
the following Oath administered to them : 

" You shall Swear That you will Do no falsehood nor 
deceit nor shall Consent to any to be done in this Court 
and if you know of any to be done you shall give knowl- 
edge thereof to the Judge of this Court for the time 
being or some other of his Majestyes Councill or assist- 
ants of this Court that it may be reformed. You shall 
delay no man for Lucre or Malice. You shall increase 
no fees but be Contented with such fees as are by order 
of Councill or the Judge of this Court allowed you, in 
time to come you shall plead no plea nor sue any suits 
unlawfully to hurt any man but such as shall stand with 
the Order of the Law and your Conscience. You shall 
not Wittingly or Willingly sue nor procure to be sued 
any false suits or give Aid or Consent to the same on 
pain of being expulsed from the Court for Ever and 
further you shall use and Demeane yourselves in the 
office of Attourneyes within the Court according to your 
Learning and discretion: So help you God." 



6o 



" The Hon. William Stoughton, the chief presiding judge, 
had been a student at Oxford prior to 1663, and was after- 
wards in England from 1676 to 1679, as agent for the 
Colony."* 

There was apparently, however, no statute with regard to 
the admission of attorneys at law to practice until 1701, when 
the following act was passed : 

" All attournys, commonly practising in any of the 
courts of justice within this province shall be under oath, 
which oath shall be administred to them by the clerk in 
open court before the justices of the same at the time of 
their being admitted to such practice, in the tenour fol- 
lowing ; that is to say, — 

" 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 knowledge thereof to the justices of the 
court, or some of them, that it may be reformed. You 
shall not wittingly and willingly promote, sue or procure 
to be sued any false or unlawful suit, nor give aid or 
consent to the same. You shall delay no man for lucre 
or malice, but you shall use yourselfe in the office of an 
attorney within the court according to the best of your 
learning and discretion, and with all good fidelity as 
well to the court as to your clients. So help you God. 

" And the fee to be allowed for an attourney in the 
superiour court of judicature shall be twelve shillings, 
and in the inferiour court of common pleas ten shillings, 
and no more; and but one attourney to be paid for in 
any case. And none but such as are allowed and sworn 

•Attorneys and their Admission to the Bar in Massachusetts, H. R. Bailey: p. 13. 



6i 



attourneys as aforesaid shall have any fee taxed for 
them in bills of costs, any law, usage or custom to the 
contrary in any wise notwithstanding."* 

In 1785 a further act was passed providing that no person 
should be admitted as an attorney unless of good moral 
character, well affected toward the government and qualified 
for the office, as follows : 

" No person shall be admitted an Attorney of any 
Court in this Commonwealth, unless he is a person of 
good moral character, and well affected to the Constitu- 
tion and Government of this Commonwealth, and hath 
had opportunity to qualify himself for the office, and 
hath made such proficiency as will render him useful 
therein ; and no person shall be admitted to practice as 
an Attorney in any Court of Justice within this State, 
until he shall in open Court have taken and subscribed 
the declaration prescribed in the Constitution of this 
Commonwealth, and an oath, in tenor following: 

" ' You solemnly swear, that you will do no falsehood, 
nor consent to the doing of any in Court, and if you 
know of an intention to commit any, you will give 
knowledge thereof to the Justices of the Court or some 
of them, that it may be prevented : you will not wit- 
tingly or willingly promote or sue any false, groundless, 
or unlawful suit, nor give aid or consent to the same; 
you will delay no man for lucre or malice; but you will 
conduct yourself in the office of an Attorney within the 
Courts, according to the best of your knowledge and 

* Province Laws, 1692-1714, Vol. 1., page 467. 



62 



discretion, and with all good fidelity, as well to the 
Courts as your Clients. 

' So help you GOD.' 

" And it is enacted, That the parties may plead and 
manage their own causes personally, or by the assistance 
of such counsel as they shall see fit to engage ; but the 
plaintiff or plaintiffs in any suit, shall not be allowed to 
manage their cause by more than two Attorneys, nor 
shall any defendant be allowed to employ a greater 
number." * 

In 1836 it was provided that any citizen of the Common- 
wealth of the age of twenty-one years, and of good moral 
character, who should have devoted three years to the study 
of law in the office of some attorney within the State, or any 
person having such qualifications who should not have 
studied for the term of three years, but was recommended by 
any attorney within the Commonwealth to be examined for 
admission as an attorney, and upon such examination by the 
Court should be found qualified, might be admitted- to 
practise in the Courts of the Commonwealth. 

And it was also provided that 

" Every person admitted as an attorney shall, in open 
court, take and subscribe the oaths to support the con- 
stitution of the United States, and of this Common- 
wealth, and the oath of office. 

" The oath of office shall be as follows: 

" You solemnly swear, that you will conduct yourself, 

* Laws and Resolves of Massachusetts, 1785, Chapter 23. 



63 

in the ofifice of an attorney, according to the best of 
your knowledge and discretion, and with all good 
fidelity, as well to the courts as to your clients. So 
help you God." 

It was also provided that an attorney might be removed by 
the courts for deceit, malpractice, or other gross misconduct, 
and that not more than two persons for each party should 
without permission of the Court be allowed to manage any 
case therein.* 

Why the original form of oath of ofifice was changed in 
this revision does not appear, but in the revision of the laws 
in i860 the original form of the oath of ofifice was sub- 
stantially restored, with the exception of the clause requiring 
the attorney if he knows of any falsehood in Court " to give 
knowledge thereof to the Judges of the Court, or some one 
of them, that it may be reformed." And the oath then 
provided and since in use is as follows : 

" Whoever is admitted as an attorney shall in open 
court take and subscribe the oaths to support the con- 
stitution of the United States, and of this common- 
wealth, and the oath of ofifice. 

" The oath of ofifice is as follows : 

" You solemnly swear that you will do no falsehood, 
nor consent to the doing of any in court ; you will not 
wittingly or willingly promote or sue any false, ground- 
less, or unlawful suit, nor give aid or consent to the 
same ; you will delay no man for lucre or malice ; but 

* Revised Statutes (1836), Chapter 88, Sections 19-27, inclusive. 



64 

you will conduct yourself in the office of an attorney 
within the courts, according to the best of your knowl- 
edge and discretion, and with all good fidelity as well to 
the courts as your clients. So help you God." * 

Under the Act of 1785, the Supreme Court in March, 
1806, and subsequently from time to time, established 
general rules for the admission of counsellors and attorneys, 
which rules were repealed and new rules made in 18 10. 
These rules required the applicant for admission to have 
practised with fidelity and ability in the Court of Common 
Pleas for the term of two years before being eligible for 
admission as an attorney of the Supreme Court.f 

The relation of a sworn attorney to the Court, and his 
powers as such attorney, were considered by the Supreme 
Court of Massachusetts in 1847, and the opinion by Chief 
Justice Shaw states the matter so fully that I quote from it. 

The question raised was whether an agreement made by 
an attorney bound a client who was ignorant of it, and who 
offered to show that the attorney had not been, in fact, 
counsel in the case for some time, although his appearance 
had not been withdrawn from the docket. The Court held 
the agreement binding, saying: 

" Nothing is more important, in a litigation in court, than 
for a party to know who is his adversary's accredited agent, 
and with whom he may safely deal in that capacity. Hence 
the great need, in all courts, of setting apart officers, recog- 
nized as attorneys, and determining their qualifications, rights 

* General Statutes, Chap. 121, Sects. 30, 31 ; Public Statutes, Chap. 159, Sects. 35, 
36; Revised Laws, Chap. 165, Sect. 42. 

t See rules March Term, 1810, 6 Mass. Rept. 382. 



65 

and powers. When, therefore, an appearance is entered for 
a party, by a regular attorney, all parties have a right, prima 
facie, to regard him as the accredited representative of such 
party. 

" The importance of upholding agreements and conces- 
sions like the present, between attorneys and counsel of liti- 
gating parties, is greater than it might seem at first blush, 
and is enhanced by our present practice. In most cases of 
controverted facts, many facts are embraced in the issue, 
which are not really in dispute between the parties ; but each 
must be prepared to prove all the facts necessary to his own 
case, unless he can previously obtain a concession from the 
adverse party, in a form which he can rely upon, at the trial. 
It is, therefore, a wise, useful and beneficial practice, resorted 
to by those who are most careful in preparing causes for 
trial, and a practice well deserving to be encouraged by the 
courts, for the parties, by their attorneys, to obtain and give 
mutual concessions, in writing, of all the material facts, not 
intended to be controverted, and so narrow the litigation to 
the precise matters in controversy. It saves expense, avoids 
surprise and delay, and often prevents the loss of a good 
cause, by an unexpected call for proof, which could easily 
have been obtained, if it had been anticipated that such fact 
would be called in question. This practice of admitting 
facts is the more necessary, since the disuse of special plead- 
ing, which was designed, and to some extent had the effect, 
to narrow the issue on record to some one or a few questions 
of fact. This consideration renders it important to hold, that 
a litigant party shall not be permitted to deny the authority 
of his attorney of record, whilst he stands as such on the 
docket. He may revoke his attorney's authority, and give 



66 

notice of it to the court and to the adverse party; but whilst 
he so stands, the party must be bound by the acts of the 
attorney. 

" It was stated in the argument for the defendant, that 
though an attorney may bind his chent, it is only by acts 
done in court. We cannot admit the correctness of this 
view. Many things may and ought to be done out of court, 
and in vacation, with a view to the proper conduct of the 
cause. All acts to be done by an attorney, without special 
directions, must be acts within the scope of his official 
authority and duty, in the proper conduct and management 
of the cause in which he is engaged ; and this is the proper 
limit of his authority. " * 

It is interesting to note as a matter of history that in 
Massachusetts barristers \vere called by the Court, and the 
distinction between barristers and attorneys maintained for a 
long time. In 1768 there were twenty-five barristers in the 
Commonwealth and thirty-one more were called after that 
time. At that time only those who had been admitted and 
sworn as attorneys in the highest Court and had practised 
there for two years were eligible to be called as barristers. 

In 1 78 1 the Supreme Judicial Court, which was estab- 
lished by the Constitution of 1780, made the following order, 
which is upon its records : 

" Whereas Learning and literary accomplishments are 
necessary as well to promote the Happiness as to pre- 
serve the freedom of the People, and the Learning of 
the Law when duly encouraged and rightly directed, 
being as well peculiarly subservient to the great and 

* Lewis V. Sumner, 54 Mass. (13 Met.) 271-273. 



67 

good Purpose aforesaid as promotive of public and 
private Justice; and this Court being at all times ready 
to bestow peculiar marks of approbation upon those 
Gentlemen of the Bar who by a close application to the 
Study of the Science they profess, by a mode of Con- 
duct which gives a Conviction of the Rectitude of their 
minds, and a fairness of Practice that does Honor to 
the Profession of the Law, shall distinguish themselves 
as men of Science, Honor and Integrity: 

" Do Order that no Gentleman shall be called to the 
Degree of Barrister until he shall merit the same ^y his 
conspicuous Learning, Ability and Honesty; and that 
the Court will of their own mere Motion call to the Bar 
such Persons as shall render themselves worthy as afore- 
said ; and that the manner of calling Barristers shall be 
as follows : The Gentleman who shall be a Candidate 
shall stand within the Bar. The Chief Justice or in his 
absence the Senior Justice shall in the name of the 
Court repeat to him the Qualifications necessary for a 
Barrister of the Law ; shall let him know that it is a 
Conviction in the Mind of the Court of his being 
possessed of these Qualifications that induces them to 
confer this Honor upon him; and shall solemnly charge 
him so to conduct himself as to be of singular Service 
to his Country by exerting his abilities for the Defence 
of her Constitutional Freedom : and so to demean him- 
self as to do Honor to the Court and Bar." 

In 1783 an order was entered by the Court prescribing 
the form of writ to be issued to call a person to be a bar- 
rister, as follows : 



68 



" Commonwealth of Massachusetts 

"To A. B., Esquire, of Greeting: VVe 

Well knowing your Ability, Learning and Integrity 
Command you that you appear before our Justices of 
our Supreme Judicial Court next to be holden at 

in and for our county of on the 

Tuesday of next then and there 

in our said Court to take upon you the State and degree 
of a Barrister at Law. Hereof Fail not. 

" Witness Esq. our Chief Justice 

at Boston the day of in the year 

of our Lord and in the year of our Inde- 
pendence 

By Order of the Court. 

Clerk." 

The Court further ordered that the writ should be 
engrossed on parchment and delivered twenty days before 
the session of the Court by the sheriff of the proper county 
to the person to whom directed, and that the writ being 
produced in Court by the barrister, and there read by the 
Clerk, and proper certificate thereon made, should be rede- 
livered to the barrister and kept as a voucher of his being 
legally called ; and that barristers should take rank according 
to the date of their respective writs. 



69 



IN NEW HAMPSHIRE. 

The first complete form of an attorney's oath which I 
have found in the English Colonies in America was that pre- 
scribed by an order of the President and Council of his 
Majesty's Territory and Dominion in America, in " An 
order for the holding of Courts and Execution of Justice," 
passed in 1686 in the old Town House in Boston, when 
Joseph Dudley was President. This act was passed in sec- 
tions on different days. 

Section 3, passed May 28, 1686, provided that 

" Such as from time to time shall be allowed and 
sworn Attoiirnyes by the Council and County Courts 
(and they only to receive Fees ?ir\d plead in any of His 
Majesties Courts), and no other presume to offer Plead- 
ing, save that every man is allowed to plead his own 
Case." 

On July 26, 1686, it was also ordered as follows: 

" That the Oath following be administred to the 
Attourneys before they be admitted Attourneyes in 
Court. 

" You shall do no falshood nor deceit, nor consent to 
any to be done in this Court, and if You know of any 
to be done You shall give knowledge thereof to the 
Judge of this Court for the time being or Some other 
of his Ma'tys Councill, or Assistants of this Court that 
it may be reformed You shall delay no man for lucre 
or malice. You shall encrease no fees but be contented 
with Such ffees as are by Order of Councill or the Judge 



JO 

of this Court allowed You, or that may be allowed 
You in time to Come. You shall plead no Plea, nor sue 
any Suits unlawfully to hurt any man, but such as shall 
stand w'th Order of the Law, and Your Conscience, 
You shall not wittingly or willingly sue, nor Pcure to be 
Sued any false Suite, nor give aid, or consent to the 
Same on paine of being expulsed from the Court for 
ever, And further You shall use and demean Your Selfe 
in Your office of an Attorny within the Court According 
to Your Learning & Discretion. So help You God." * 

This oath was adopted by the Province of New Hamp- 
shire in 1 7 14 by 

" An Act relating to Attornies " as follows: 

Be it Enacted by His Excellency the Governor, Council, 
and Representatives, convened in General Assembly, and 
by the Authority of the same. That the plaintiff or defend- 
ant in any suit may plead or defend his cause by himself 
in his proper person, or with the assistance of such other 
person as he shall procure. 

And be it further Enacted, That all attornies commonly 
practicing in any of the courts of justice within this prov- 
ince, shall be under oath, which oath shall be administered 
to them by the clerk in open court, before the justices of 
the same, at the time of their being admitted to such practice 
in the tenor following. That is to say. 

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 

*Laws of New Hampshire, Province Period, 1679- 1702, Vol. I., pages 105, 123. 



71 

give knowledge thereof to the justices of the court, or some 
of them, that it may be reformed. You shall not wittingly 
or willingly promote, sue or procure to be sued any false or 
unlawful suit, nor give aid or consent to the same. You 
shall delay no man for lucre, or malice, but you shall use 
yourself in the office of an attorney within the court 
according to the best of your learning and discretion, and 
with all good fidelity, as well to the court as your client. 
So help you God. 

And the fee to be allowed for an attorney in the supe- 
rior court of judicature shall be twelve shillings, and in 
the inferior court of common pleas ten shillings, and no 
more ; and but one attorney to be paid for in any case ; and 
none but such as are allowed and sworn attorneys, as 
aforesaid, shall have any fee taxed for them in bills of 
cost: Any law, usage, or custom to the contrary in any 
wise notwithstanding.* 

February 17, 1791, after New Hampshire became a State, 
the oath was adopted by the following act: 

" An Act Relating to Attornies. 

" Be it enacted by the Senate and House of Representa- 
tives in General-Court convened, That the plaintiff or 
defendant, in any cause, prosecution or suit, being a citizen 
of this State, may appear, plead, pursue or defend, in his 
proper person, or by such other citizen of this State, being 
of good and reputable character, and behavior, as he may 



*Acts and Laws of His Majesty's Province of New-Hampshire in New England 
(1771), Cliapter XXXVU., page 50. 



72 

engage and employ, whether the person so employed be 
admitted as an attorney at law, or not. 

"And be it further enacted, That all attornies commonly 
practicing in any of the courts of justice within this State, 
shall be under oath, which oath shall be administered to 
them by the clerk, in open court, before the justices of the 
same, at the time of their being admitted to such practice, in 
the tenor following — That is to say, 

" YOU solemnly swear, that you will do no falsehood, nor 
consent that any be done in court, and if you know of any, 
that you will give knowledge thereof to the justices of the 
court, or some of them, that it may be reformed ; that you 
will not wittingly or willingly promote, sue or procure to be 
sued, any false or unlawful suit, nor consent to the same; 
you shall delay no man for lucre or malice, but shall act in 
the office of an attorney within the court according to the 
best of your learning and discretion, and with all good 
fidelity as well to the court as your client. So help you 
GOD. 

" And but one attorney to be taxed in any bill of cost, any 
law, usage or custom to the contrary notwithstanding." 

The form now in use is as follows: 

" Every attorney admitted to practice shall take and sub- 
scribe, in open court, the oaths to support the constitution of 
this state and of the United States, and the oath of office in 
the following form: 

" You solemnly swear that you will do no falsehood, nor 
consent that any be done in the court, and if you know of 
any, that you will give knowledge thereof to the justices of 



73 

the court, or some of them, that it may be reformed ; that 
you will not wittingly or willingly promote, sue, or procure 
to be sued any false or unlawful suit, nor consent to the 
same ; that you will delay no man for lucre or malice, and 
will act in the office of an attorney within the court accord- 
ing to the best of your learning and discretion, and with all 
good fidelity as well to the Court as your client. So help 
you God." * 



* Public Statutes, N.H., Chap. 213. 



74 



IN NEW JERSEY. 

The tirst reference to attorneys in the laws of New Jersey 
was contained (14th April, 1698) in 

"Further Orders and Instructions to Jeremiah Basse, Esquire, 
Governor of the Province of East New-Jersey, in America, 
sent from London, by the Committee of the Proprietors 
tliere to be observed by the said Governor, viz. : 

" That you consent to pass a Law or Act of Assembly 
that no Attorney or other Person be suffered to Practice 
or plead for Fee or Hire, in any Court of Judicature, in 
any Suit or Cause or Process in Law whatsoever, but 
such as are admitted to Practice by Licence of the 
Governor of the Province for the Time being." * 

In 1799, after New Jersey became a State, it was provided 
that every person of full age and sound memory might 
appear and prosecute or defend any action in Court in 
person, " or by his solicitor in chancery or attorney-at-law," 
but that no person, except in his own case or in the case of 
an infant, should appear and prosecute or defend any action 
but " such as is a licensed solicitor or attorney-at-law who 
shall be under the direction of the Court in which he acts." 

And also 

" That if any counsellor, solicitor or attorney at law 
shall be guilty of malepractice in any of the said courts, 
he shall be put out of the roll, and never after be per- 

*The Grants, Concessions, and Original Constitutions of the Province of New- 
Jersey, etc., page 223. 



75 

mitted to act or practice as a counsellor, solicitor or 
attorney at law, unless he shall obtain a new license and 
be again enrolled in due form of law." 

The lawyer's oath, as prescribed in 1799, was first, the 
oath of allegiance : 

" I, do sincerely profess and 

swear, that I do and will bear true faith and allegiance 
to the government established in this state, under the 
authority of the people. So help me God." 

and second, 

" I, do solemnly promise 

and swear, that I will faithfully and honestly demean 
myself in the practice of an attorney (or of a counsellor 
or solicitor, as the case may be) and will execute my 
office according to the best of my abilities and under- 
standing. So help me God." 

This oath of office was required to be taken and sub- 
scribed in open Court.* 

The degree of Sergeant-at-law was recognized in New 
Jersey, and appointments made by rule of the Supreme 
Court in May, 1755. In 1763, however, it was ordered by 
the Court " that no person for the future shall practice as a 
Sergeant in this Court but those that are recommended by 
the Judges to the Governor for the time being, and duly 
called up by writ and sworn agreeably to the practice of 
England." 

* Laws of New Jersey (1800), pages 355, 377. 



ye 

In May, 1764, this rule was vacated, the number of 
Sergeants was subsequently fixed at twelve, and for a time 
examinations for admission to the Bar were conducted exclu- 
sivel}' by the Sergeants. In 1839 the degree of Sergeant- 
at-law was abolished.* Lawyers were undoubtedly licensed 
and sworn by the Governor, in the Province of New Jersey, 
according to the English practice, and they are now licensed 
by the Governor upon recommendation by the Supreme 
Court after examination, which is provided for by rules of 
Court. 

The rules of the Supreme Court require that an attorney 
or counsellor shall not be admitted unless he take the oath 
to support the Constitution of the United States and the 
oath of allegiance to the State, as well as the oath of office 
prescribed by law. The oath of office prescribed by law at 
the present time is as follows : 

" That every counselor, solicitor or attorney-at-law, shall, 
before he be permitted to practice in any court of this state, 
take and subscribe in open court, the following oath, to wit: 

I, , do solemnly promise and 

swear, that I will faithfully and honestly demean myself 
in the practice of an attorney (or of a counselor or 
solicitor, as the case may be), and will execute my 
office according to the best of my abilities and under- 
standing. So help me God." 

The conduct of attorneys is specifically regulated by the 
following statutory provision the penalty in which is like 
that of the ancient English statute : 

*The Supreme Court of the States and Provinces of North America (Bell.), Vol. I., 
Series 2, page 66. 



77 

" If any counselor, solicitor or attorney-at-law shall be 
guilty of malpractice in any of the courts, he shall be put 
out of the roll, and never after be permitted to practice as a 
counselor, solicitor, or attorney-at-law, unless he shall obtain 
a new license, and be again enrolled in due form of law." * 

There is, however, no statute authorizing the Court to 
examine or the Governor to license persons as lawyers. 
Both rest upon immemorial custom. An interesting descrip- 
tion of this matter is found in the case of Branch et a/., 70 
N.J. Law, where the Court say: 

"The Supreme Court of New Jersey neither licenses 
attorneys-at-law nor admits them to practice. They are 
invested with that privilege by letters-patent, issued by the 
governor of the state when he is assured that such licensees 
are possessed of the proper qualifications by a recommenda- 
tion to that effect from the Supreme Court, based upon an 
examination made by it or under its supervision, which ex- 
amination so made or supervised has, from the earliest 
periods, been a distinctive attribute of the Supreme Court, 
and as such existed in unqualified form at the time the 
constitution of 1 844 was adopted. The power of the Supreme 
Court thus to examine, for itself, those whom, it recom- 
mended for license, was therefore one of those ' powers ' 
which in addition to its 'jurisdiction,' it was by that instru- 
ment authorized to ' continue.' " 



* General Statutes of New Jersey, 1896, Vol. 2, pages 2330-2534. 



78 



IN NEW YORK. 

The first legislation as to lawyers in the Province of New 
York was : 

" An Act for Regulating the Retaining Attorneys at 
Law," passed October 22, 1695 • 

Whereas the Number of Attorneys at Law that prac- 
tice at the Barr in this Province are but few and that 
many persons Retain most of them on one side to the 
great prejudice and discouragement of others that have 
or may have suits at Law to the end therefore that Jus- 
tice ma}' be Equally administred and no Room Left for 
Complaint be it Enacted by the Governour and Councill 
and Representatives Convened in Generall Assem-bly and 
by the Authority of the same that from and after the 
publication hereof that no person or persons That shall 
have any suit at Law in any of the Courts of Record 
Within this Province shall Retain more then two Attor- 
neys at Law for the prosecution or management of any 
such Suit or process at Law that they shall have and if 
they Retain any more it shall be Lawful for the Justices 
of the bench where the Suit is Depending to order all 
such Attorneys as shall be Retained more than two as 
aforesaid to plead for the other side Without Returning 
the fee Received any thing Contained in this or any 
other Act To the Contrary hereof in any wise Notwith- 
standing, provided That this Act Nor any thing Con- 
tained therein shall Continue in force any Longer then 
two years After the publication hereof.* 

* Colonial laws of New York, from 1664 to the Revolution. Edition of 1894, Vol. 
I- page 351. 



79 

I think attorneys were admitted and sworn in New York 
until after the Revolution in the manner required by the 
English statutes and practice of the Courts. After New 
York became a State, however, their admission was regulated 
by 

" An ACT concerning Counsellors, Attornies, Solicitors, Advo- 
cates, and Proctors of the several Courts in this State, 
Passed 20th February, 1787." This Act is so specific in 
its provisions and throws so much light on the practice 
of the law at that time that I give it in full as follows : 

" I. Be it Enacted by the People of the State of New- 
York, represented in Senate and Assembly, and it is hereby 
Enacted by the Authority of the same, That it shall be law- 
ful for all and every Person and Persons whomsoever, of full 
Age and sound Memory, other than Defendants in Cases 
where corporal Punishments may be inflicted, to make and 
appear by his, her or their Attorney or Attornies, in all and 
every or any Suit, Action or Plea, real or personal, moved 
or to be moved, by or against him, her or them, in any 
Court in this State; and to commence, pursue, prosecute 
or defend the same Suit, Action or Plea, in Person, or by 
his, her or their Attorney or Attornies. 

" II. And be it further Enacted by the Authority afore- 
said, That all Warrants of Attorney of the Parties, or of any 
or either of them, in all Suits, Actions and Pleas, in any 
Court of Record, shall be taken before the Judges or Justices 
of the respective Courts in which the same Suit, Action or 
Plea is or shall be depending, or one of them, or before the 
Chancellors of this State for the Time being, who shall cer- 
tify and send the Warrants of Attorney before him taken, to 



8o 



the Judges or Justices of the Court in which the Suit, Action 
or Plea is or shall be depending. And further, That such as 
cannot conveniently come before any or either of the Judges 
or Justices of the Court in which such Suit, Action or Plea 
is or may be depending, or before the Chancellor, to make 
his, her or their Attorney or Attornies in the same Suit, 
Action or Plea, may appear before such Judges, Justices or 
Chancellor, or either of them, by his, her or their Agent or 
Attorney, having sufficient Authority therefore in Writing, 
by Letter of Attorney or otherwise, from the Person or Per- 
sons in whose Behalf such Suit, Action or Plea is or may be 
depending; and in Cases where it may be necessary, shall 
have a Writ out of the Chancery to some sufficient Man, to 
receive his, her or their Warrant of Attorney in the same 
Suit, Action or Plea ; and in all Cases where any Infant is or 
shall be entitled to any Suit or Action, some or one of the 
next Friends of such Infant shall be admitted, in Manner 
aforesaid, to sue and prosecute for such Infant. And if any 
Infant is or shall be impleaded, a Guardian shall be appointed, 
in Manner aforesaid, for such Infant, to defend the same 
Suit, Action or Plea, for the same Infant. 

" III. And be it further Enacted by the Authority afore- 
said, That no Person shall henceforth be admitted a Coun- 
sellor, Attorney, Solicitor, Advocate or Proctor, in any 
Court, but such as have been brought up in the same Court, 
or are otherwise well practised in soliciting Causes, and have 
been found, by their Dealings, to be skilful, and of honest 
Disposition ; and that every Person hereafter to be admitted 
a Counsellor, Attorney, Solicitor, Advocate or Proctor of any 
Court, shall, before such Admission, be examined by the 
Judges or Justices of the same Court, and such only as shall 



be found virtuous and of good Fame, and of sufficient Learn- 
ing and Ability, shall be admitted, and their Names shall be 
put in a Roll or Book to be kept in each Court respectively, 
for that Purpose; and each and every Person so admitted 
shall, upon such Admission, in open Court, take and sub- 
scribe an Oath of Office in the Words following: 

' I , do swear, That I will truly and 

honestly demean myself in the Practice of an Attorney 
(or of a Counsellor, Solicitor, or Proctor, or of an 
Advocate, as the Case may be) according to the Best 
of my Knowledge and Ability.' 

" IV. And be it further Enacted, by the Authority afore- 
said, That if any Counsellor, Attorney, Solicitor, Advocate 
or Proctor of any Court, heretofore admitted, or hereafter to 
be admitted, shall be found notoriously in Default of Record 
or otherwise, he shall be put out of the Roll, and never after 
be received to act as a Counsellor, Attorney, Solicitor, 
Advocate or Proctor, in any Court. And further. That when 
any Attorney shall die, or cease to act, or be put out of 
the Roll of Attornies, the Persons for whom he was Attor- 
ney, shall be warned to appoint another Attorney in his 
Place, so that in the mean Time no Damage or Prejudice 
may come to the Party. 

" V. And be it further Enacted by the Authority afore- 
said. That if any Counsellor, Attorney, Solicitor, Pleader, 
Advocate, Proctor, or other, do any Manner of Deceit or 
Collusion, in any Court of Justice, or consent unto it in 
Deceit of the Court, or to beguile the Court or the Party, 
and thereof be convicted, he shall be punished by Fine and 



82 



Imprisonment, and shall moreover pay to the Party grieved, 
treble Damages, and Costs of Suit. 

" VI. And be it further Enacted by the Authority afore- 
said, That if any Attorney, Solicitor or Proctor, do or shall 
wilfully delay his Client's Suit, to work his own gain, or wil- 
fully demand, by his Bill, any Sums of Money or Allowance 
for or upon Account of an}- Money which he hath not laid 
out or disbursed, or become answerable for, in every such 
Case the Party grieved shall have his or her Action against 
such Attorney, Solicitor or Proctor, and recover therein 
treble Damages and Costs of Suit: And such Attorney, 
Solicitor or Proctor, shall thereupon be put out of the Roll 
and be discharged from thenceforth from being an Attorney, 
Solicitor or Proctor any more. 

" VII. And be it further Enacted by the Authority afore- 
said. That no Attorney, Solicitor or Proctor, shall commence 
any Suit or Action for Recovery of any Fees, Charges or 
Disbursements, until eight Days after he shall have delivered 
to the Party to be charged therewith, or left for him or her, 
at his or her Dwelling-House, or last Place of Abode, a Bill 
of such Fees, Charges and Disbursements, written in a 
common legible Hand, in the English Tongue, (except Law 
Terms, and the Names of Writs, and in Words at length, 
except Times and Sums, and such Abbreviations as are com- 
monly used in the English Language) subscribed with the 
proper Hand of such Attorney, Solicitor or Proctor. 

"VIII. And be it further Enacted by the Authority 
aforesaid, That the Attorney for the Plaintiff or Demandant, 
in every Action or Suit, shall file his Warrant of Attorney 
with the proper Officer of the Court where the Cause is or 
shall be depending, the same Term he declares, and the 



83 

Attorney for the Defendant or Tenant shall file his Warrant 
of Attorney as aforesaid, the same Term he appears, upon 
Pain to forfeit, for every Neglect or Offence, the Sum of Ten 
Pounds, to be recovered by Action of Debt, Bill, Plaint or 
Information ; the one Moiety thereof to the Use of the People 
of this State, and the other Moiety thereof to the Officer to 
whom or in whose Office the same Warrant should be deliv- 
ered, entered or filed ; and also to make Satisfaction to the 
Party grieved, according to the Discretion of the Court 
where any such Default or Neglect shall be had or made. 

" IX. And be it further Enacted by the Authority afore- 
said, That every Process for arresting, and every Writ of 
Execution, or some Label annexed, shall, before Service or 
Execution thereof, be subscribed or indorsed with the Name 
of the Attorney or Person by whom the same Process or Writ 
of Execution shall be sued forth. 

" X. And be it further Enacted by the Authority afore- 
said, That if any Attorney of any Court of Record, shall 
knowingly and willingly permit or suffer any other Person to 
sue out any Writ, or commence, prosecute or defend any 
Action or Suit, in his Name, and be thereof convicted, he 
shall be put out of the Roll of Attornies, and from the Time 
of such Conviction, be disabled to practice in such Court. 
And further. That as well the same Attorney as he who shall 
sue out any such Writ, or commence, prosecute or defend 
any such Action or Suit, shall each of them forfeit, for every 
such Offence, the Sum of Twenty Pounds; the one Moiety 
thereof to the People of this State, and the other Moiety 
thereof to the Party grieved ; to be recovered by Action of 
Debt, Bill, Plaint or Information, in any Court of Record. 

" XI. And be it further Enacted by the Authority afore- 



84 

said, That from and after the first Day of May next, no 
Clerk, or Register, or Deputy Register, of any Court, nor 
any Examiner, or Master of the Court of Chancery, shall act 
as a Counsellor, Attorney, Solicitor, Advocate or Proctor, in 
any Suit, Action or Matter in the same Court ; and that no 
Under Sheriff, Sheriff's Clerk, Coronor or Bailiff, shall, dur- 
ing his Continuance in Office, act as Counsellor, Attorney, 
Solicitor, Advocate or Proctor, in any Court whatsoever. 
Provided nevertheless. That every such Clerk, Register, or 
Deputy Register, Examiner, or Master of the Court of 
Chancery, who now practises as Counsellor, Attorney, Solici- 
tor, Advocate or Proctor, shall and may proceed to prose- 
cute such Actions and Suits, in which he now is, or before 
the first Day of May next, shall be Attorney of Record, 
Solicitor or Proctor, until such Suit or Action is finally 
concluded." * 

It will be noticed that the 4th, 5th and 6t'h sections of this 
act practically embody the provisions of the English Statute 
Primer Westminster. And if the provisions of the 5th and 
6th sections were included in the oath of office required by 
the act, the oath would correspond very nearly to the official 
oath established in New Hampshire in 1686. The statute is 
also interesting as showing how carefully written authority 
by parties to attorneys was then required to be given by a 
warrant of attorney. 

The only oath now required upon the admission of lawyers 
in New York is the oath of office prescribed by the Article 
XIII. of the Constitution to be taken by all officers and, 
as applied to lawyers, is as follows : 

* Laws of New York. Edition of 1789, Vol. 2, page 64. 



85 

I do hereby solemnly swear that I will support the 
Constitution of the United States and the Constitution 
of the State of New York and that I will faithfully dis- 
charge the duties of the office of Attorney and Coun- 
sellor at Law in the Supreme Court of the State of New 
York according to the best of my ability. 



86 



IN NORTH CAROLINA. 

The English statutes as to lawyers were observed in 
North Carolina and were considered as in force as late as 
1792. Chapter 29 Primer Westminster, as to the penalty 
of a Sergeant or pleader committing deceit, and Chapter 
7 of the Statutes, James I., 3, were printed in that year, as 
being in force in the State of North Carolina.* 

This last statute was as follows : 

" An Act to reform the Multitudes and Misdemeanors of 
Attornies and Solicitors at Law, and to avoid unneces- 
sary Suits and Charges in Law. 

" For that through the abuse of sundry Attornies and 
Solicitors by charging their clients with excessive fees, and 
other unnecessary demands, such as were not, nor ought by 
them to have been employed or demanded, whereby the 
subjects grow to be overmuch burthened, and the practice of 
the just and honest Serjeant and Counsellor at Law greatly 
slandered ; And for that to work the private gain of such 
Attornies and Solicitors, the client is often times extraor- 
dinarily delayed : Be it enacted by the authority of this 
present Parliament, that no Attorney, Solicitor, pr servant to 
any, shall be allowed from his client or master, of or for any 
fee given to any Serjeant or Counsellor at Law, or of or for 
any sum or sums of money given for copies to any Clerk or 
Clerks, or officers in any court or courts of record at West- 
minster, unless he have a ticket subscribed with the hand 

* A Collection of the Statutes of the Parliament of England in force in the State of 
North-Carolina. Published according to a Resolve of the General Assembl)'. By 
Francois-Xavier Martin, Esq., Counsellor at law, 1792, pages 10, 356. 



87 

and name of the same Serjeant or Counsellor, Clerk or 
Clerks, or officers aforesaid, testifying how much he hath 
received for his fee, or given or paid for copies, and at what 
time, and how often : And that all Attornies and Solicitors 
shall give a true bill unto their masters or clients, or their 
assigns, of all other charges concerning the suits which they 
have for them, subscribed with his own hand and name, 
before such time as they or any of them shall charge their 
clients with any the same fees or charges : And that if the 
Attorney or Solicitor do or shall willingly delay his clients 
suits to work his own gain, or demand by his bill any other 
sums of money, or allowance upon his account of any money 
which he hath not laid out or disbursed, that in every such 
case, the party grieved, shall have his action against such 
Attorney or Solicitor, and recover therein costs and treble 
damages, and the said Attorney and Solicitor shall be 
discharged from thenceforth from being an Attorney or 
Solicitor any more. « 

" II. And to avoid the infinite numbers of Solicitors and 
Attornies, be it enacted by the authority of this present 
Parliament, that none shall from henceforth be admitted 
Attornies in any the King's courts of record aforesaid, but 
such as have been brought up in the same courts, or other- 
wise well practised in soliciting of causes, and have been 
found by their dealings to be skilful and of honest dis- 
position: And that none to be suffered to solicit any cause 
or causes in any of the courts aforesaid, but only such as are 
known to be men of sufficient and honest disposition; And 
that no Attorney shall admit any other to follow any suit in 
his name, upon pain that both the Attorney and he tha 
followeth any such suit in his name, shall each of them for- 



88 



feit for such offence, twenty pound, the one moiety whereof 
to our Sovereign Lord the King, his heirs and successors, 
and the other moiety to the party grieved, to be recovered in 
an\- the said courts of record aforesaid, b}^ original writ of 
debt, bill, plaint, or information, wherein no manner of 
essoin, wager of law, or protection shall be allowed : And 
that the Attorney in such case shall be excluded from being 
an Attorney for ever thereafter." * 

In 1777, after North Carolina became a State, the admis- 
sion of Attorneys was regulated by 

" An act for establishing courts of law, and for regulating 
the proceedings therein," as follows: 

VII. And be it further enacted by the authority afore- 
said. That all persons who have heretofore obtained licences 
to practise as attornies in the courts under the late govern- 
ment, and have been admitted as such, shall hereafter be 
permitted to practise in such courts in which they were 
heretofore admitted to practise, without an}' further examina- 
tion ; and every person who shall hereafter apply for admis- 
sion to practise as an attorney, shall undergo an examination 
before two or more judges of the superior courts of this state, 
and if such person shall be found to possess a competent 
share of law knowledge, and be a person of upright charac- 
ter, such judges shall give him a certificate, under their 
hands and seals, to practise in any court of this state for 
which they may judge him qualified. 

VIII. And be it further enacted by the authority afore- 
said. That no person coming into this state from any other 
state, or from any foreign country, with an intention to prac- 

* Statutes of England in force in North Carolina, 1792, pages 356-7. 



89 

tise the law, shall by the said judges be admitted to practise 
as an attorney, unless he shall have previously resided one 
year in this state, or unless such person shall produce to the 
said judges a testimonial from the chief magistrate of such 
state or country, or from some other competent authority, 
that he is of an unexceptionable moral character; and all 
such attornies, before they shall be admitted to practise in 
any court, shall in open court, before the judges thereof, 
take the following oath, viz. : 

" I A. B. do swear, that I will truly and honestly 
demean myself in the practise of an attorney, according 
to the best of my knowledge and ability. So help me 
God." 

And upon such qualification had, and oath taken, such 
attornies, as well as those who have heretofore obtained 
licences, may act as attornies during their good behaviour.* 

In North Carolina an act was passed in 1786 as to the 
jurisdiction of courts, etc., the 2d clause of which was as 
follows : 

" II. AND whereas the frequent Abufes of Attornies 
have occafioned Diftreffes to many of the good People 
of this State ; Be it therefore enacted, That it fhall not 
be lawful for either Plaintiff or Defendant to employ in 
any Matter or Suit whatever more than one Attorney to 
fpeak to any Suit in Court; and the Courts in this State 
are hereby directed not to fuffer more than one Attorney 
as aforefaid in any Matter whatever, to plead for either 
Plaintiff or Defendant to any Suit, under the Penalty of 
a Violation of this Act." f 

* Public Acts of North Carolina. Edition of 1804, Vol. i, page 210. 
t" Laws of the State of North Carolina," 1715-1790, Ch. 14. 



90 

The 4th clause established fees to be taken by attorneys ; 
and the 5th provided that if any attorney should take 
directly or indirectly any other or greater fees " it fhall be 
deemed in fuch Attorney a Mifdemeanor in his Ofifice or 
Profeffion of an Attorney;" and then provided for prosecu- 
tion, trial by jury, and dismission from practice for one year 
in case of conviction. 

The provision as to admission of attorneys now is as fol- 
lows : 

" Attorneys before they shall be admitted to practice law 
shall, in open court before a justice of the supreme or judge 
of the superior court, take the oath prescribed for attorneys, 
and also the oaths of allegiance to the state, and to support 
the constitution of the United States, prescribed for all public 
officers, and the same shall be entered on the records of the 
court; and, upon such qualification had, and oath taken, 
may act as attorneys during their good behavior." The 
oath prescribed is as follows : 

" I, A. B., do swear (or affirm) that I will truly and 
honestly demean myself in the practice of an attorney, 
according to the best of my knowledge and ability; so 
help me, God." * 

North Carolina has a recent statute regulating the disbar- 
ment and suspension of Attorneys which specifies the causes 
for which they may be removed from office, but recognizes 
the discretionary power of the Court to disbar or suspend 
them.f 

* Revised Laws of North Carolina, 1905, Chap. 5, Sect. 209 ; Chap. 56, Sect. 2360. 
t Public Laws, North Carolina, 1907, Ch. 941. 



91 



IN PENNSYLVANIA. 

The first provision of law as to Attorneys in Pennsylvania 
was in 1722 in 

" An ACT for establishing Courts of Judicature in this 
province," as follows: 

" XXVIII. And be it further enacted, That there may 
be a competent number of persons, of an honest dispo- 
sition, and learned in the law, admitted by the Justices of 
the said respective courts, to practise as Attornies there ; 
who shall behave themselves justly and faithfully in their 
practice : And if they misbehave themselves therein, they 
shall suffer such penalties and suspensions, as Attornies at 
law in Great-Britain are liable to in such cases ; by which 
Attornies actions may be entered, and writs, process, declara- 
tions, and other pleadings and records, in all such actions 
and suits, as they shall respectively be concerned to prose- 
cute or defend from time to time, may be drawn, and with 
their names and proper hands signed : Which said Attornies 
so admitted may practise in all the courts of this province, 
without any further or other licence or admittance: And 
that the Attorney for the plaintiff in every action shall file 
his warrant of attorney in the Prothonotary's office the same 
court he declares: And the Attorney for the defendant shall 
file his warrant of attorney the same court he appears: 
And if they neglect so to do, they shall have no fee allowed 
them in the bill of costs, nor be suffered to speak in the 
cause, until they file their warrants respectively." * 

* Laws of Pennsylvania. Edition of 1797, Vol. i., page 185. 

By the act of the 25th day of September, 1786, 2d vol., page 472, the court is 



92 

In 1726 an attorney's oath of office was prescribed by 
Governor as follows: 

" AT a General Assembly begun at Philadelphia, the 
Fourteenth Day of October, in the Thirteenth Year of the 
Reign of our Sovereign, Lord George King of Great- 
Britain, &C. Anno ; Domini, One Thousand Seven Hun- 
dred and Twenty Six and continued by Adjournment till the 
Twenty fifth Day of August One Thousand Seven Hundred 
and Twenty Seven, the following Acts were passed by the 
Honourable Patrick Gordon, Esq. ; Governour of the said 
Province, That is to say. 

An ACT for the Establishing of Courts of Judicature in this 
Province : 
********* 
And be it further Enacted by the Authority aforesaid. 
That there may be a competent Number of Persons of an 
honest Disposition, and learned in the Law, admitted by the 
Justices of the said respective Courts, to Practice as Attor- 
neys there, who shall behave themselves justly and faithfully 
in their Practice ; and before they are so admitted, shall take 
the following Qualification, viz. 

Thou shalt behave thy self in the Office of Attorney 
within the Court, according to the best of thy Learning 
and Ability, and with all good Fidelity, as well to the 
Court as to the Client: Thou shalt use no Falshood, 
nor Delay any Persons Cause for Lucre or Malice. 

And if they misbehave themselves therein, they shall suffer 
such Penalties and Suspensions as Attorneys at Law in 

empowered to make rules for the government of its own practice ; and by the act of 
the 13th day of April, 1791, 3d vol., page 96, the Judges of the Courts of Record 
therein mentioned are excluded from practising as Counsellors or Attornies. 



Great-Britain are liable to in such Cases; by which Attor- 
neys, Actions may be entered, and Writs, Process, Declara- 
tions and other Pleadings, and Records in all such Actions 
and Suits as the)' shall respectively be concerned to prose- 
cute or defend, from Time to Time may be drawn and with 
their Names and proper Hands signed. Which said Attor- 
neys so admitted, may practice in all the Courts of this 
Province, without any further or other Licence or Admit- 
tance. 

And that the Attorney for the Plaintiff in every Action 
shall file his Warrant of Attorney in the Prothonotary's 
Office the same Court he declares, and the Attorney for the 
Defendant shall file his Warrant of Attorney the same Court 
he appears and if they neglect so to do, they shall have no 
Fee allowed them in the Bill of Costs, nor be suffered to 
speak in the Cause until they file their Warrants of Attorney 
respectively." * 

The oath of office prescribed by this statute has been sub- 
stantially retained in use to the present time with " thou " 
and " thy," the Quaker form, changed to " you " and " your," 
and is now as follows : 

" You do swear (or affirm) that you will support the 
Constitution of the United States, and the constitution 
of this commonwealth, and that you will behave your- 
self in the office of attorney within this court according 
to the best of your learning and ability, and with all 
good fidelity, as well to the court as to the client, that 
you will use no falsehood, nor delay any person's cause 
for lucre or malice." t 

* Laws of Pennsylvania. Edition of 1728, pages 327, 336. 
t Digest Laws (Pepper and Lewis), page 225. 



94 



IN RHODE ISLAND. 

In Rhode Island an act was passed in 1647 ^^ to Attor- 
ne}'s, which specifically referred to the English statutes as to 
lawyers. It was as follows : 

" Be it enacted by the authority of the present Assem- 
bly that any man may plead his own case in any court 
or before any jury of record throughout the whole 
Colony, or make his attorney to plead for him, or may 
use the attorney that belongs to the court, which may 
be two in a town, to wit: discreet, honest and able men 
for understanding, chosen by the townsmen of the same 
town, and solemnly engaged by the head officer thereof, 
not to use afty manner of deceit to beguile either court or 
party. And these being thus chosen and confirmed, 
shall be authorised, being entertained, to plead in any 
court of the Colony; but incase any such pleader or 
attorney shall use any manner of deceit, as is aforesaid, 
and be thereof attainted, or that shall be notoriously 
in any default of record, he shall forfeit his place and 
never more be admitted to plead in any court of the 
Colony. 3 Ed. 4, 28 ; 4 Hen. 4, 18 — ." * 

The words " solemnly engaged " in this act may not hav^e 
required an oath, but at a General Assembly held at New- 
port the second of May, 1705. an act was passed specifically 
providing for an oath as follows : 

" no attorney shall be admitted to plead in any of the 
Courts but shall be Sworne, not to Plead for favour nor 

*Code of Laws of R.I., 1647 (Staples) , page 58. 



95 

affection for any Person, but ye meritt of the Case 
according to Law." * 

The admission of attorneys to practise in the Courts of 
Rhode Island was regulated by the Courts until 1798, under 
the authority given by statute to make such necessary rules 
of practice as the Court should from time to time find nec- 
essary for the better regulation of the Court. In 1822, how- 
ever, Section 4 of the act to establish a Supreme Judicial 
Court provided 

"... That the said Supreme Court shall have 
power ... to make and establish all such rules for 
the admission of attornies to practice in said court, and 
for the orderly conducting business therein, as the dis- 
cretion of said court shall direct; .provided such rules 
are not repugnant to the laws of the state." 

The present statute provides that 

"The Supreme Court . . . shall by general or special 
rules regulate the admission of attorneys to practice in all 
the courts of the state." 

It was, however, the custom from the beginning, as is 
shown by the records of the Court, to require an official oath 
upon the admission of an attorney. The records of the 
Supreme Court of 1765 show that 

"Joseph Aplin, Esq., was admitted and duly sworn an 
attorney and practitioner of this court." f 

* Public Laws of Rhode Island, 1636-1705, page 116 (reprint edited by Sidney S. 
Rider, 1896). 

t Records in custody of Clerl< of Supreme Court, Book i, page 404, April 27, 1765. 



96 

In May, 1837, the Supreme Court established the following 
as the form of an attorney's oath : 

I do solemnly swear, that I 

will demean myself as an Attorney and Counsellor of 
this Court, and all other Courts and tribunals of the 
State before whom I may practise as an Attorney or 
Counsellor, uprightly and according to law, and that I 
will support the Constitution and laws of this State, and 
the Constitution of the United States.* 

In 1886 this form was slightly modified as follows, which 
is the form now used : 

I, , do solemnly swear that I 

will demean myself as an attorney and counsellor of this 
court, and of all other courts before which I may prac- 
tice as an attorney and counsellor, uprightly and accord- 
ing to law, and that I will support the Constitution and 
laws of this State and the Constitution of the United 
States. t 



* Rules of Supreme Court adopted May, 1837, I. R.I., IX. 
t Rules of Supreme Court adopted March, 1886, 15 R.I., 632. 



97 



IN SOUTH CAROLINA. 

A large number of English statutes were made of force in 
South Carolina in December, 17 12. Among others Chap- 
ter 29 of Primer Westminster as to penalties upon Serjeants 
or pleaders committing deceit; and also the provision of 
Chapter 18, 4 Henry 4 (A.D. 1402), as to the admission 
and regulation of attorneys, as follows : 

" The punishment of an Attorney found in Default. 

" ITEM, For sundry damages and mischiefs that have 
ensued before this time to divers persons of the realm 
by a great number of attornies, ignorant and not learned 
in the law, as they were wont to be before this time ; 
(2) it is ordained and stablished, That all the attornies 
shall be examined by the justices, and by their dis- 
cretions their names put in the roll, and they that be 
good and virtuous, and of good fame, shall be received 
and sworn well and truly to serve in their offices, and 
especially that they make no suit in a foreign county; 
and the other attornies shall be put out by the discretion 
of the said justices; (3) And that their masters, for 
whom they were attornies, be warned to take others in 
their places, so that in the mean time no damage or 
prejudice come to their said masters. {4) And if any 
of the said attornies do die, or do cease, the justices for 
the time being by their discretion shall make another in 
his place, which is a virtuous man and learned, and 
sworn in the same manner as afore is said; (5) and if 
any such attorney be hereafter notoriously found in any 



98 

default of record, or otherwise, he shall forswear the 
court, and never after be received to make any suit in 
any court of the King. (6) And that this ordinance 
be holden in the Exchequer after the discretion of the 
treasurer and of the barons there." * 

In 1 72 1 the admission of attorneys was provided for by 

" An Act for establishing County and Precinct Courts," as 
follows : 

" And whereas divers unskilful person do often under- 
take to manage and solicit business in the courts of law 
and equity, to the unspeakable damage of the clients, 
occasioned by the ignorance of such solicitors, who are 
no ways qualified for that purpose, tending to the pro- 
moting litigiousness, and encouraging of vexatious 
suits: Be it therefore enacted, That no person whatso- 
ever shall practise or solicit the cause of any other 
person, in the said county or precinct courts, or any 
other court of law and equity in this Province, unless he 
hath been heretofore admitted and sworn as an attorney, 
or hereafter shall be admitted and sworn as an attorney, 
by the Chief Justice and Judges of the General and 
Supreme Court at Charlestown, under the penalty of 
£.100 for every cause he shall so solicit, one-half to his 
Majesty for the use of the public, and the other half to 
him or them that will sue for the same." f 



* South Carolina Statutes at Large, Vol. 2, pages 401, 420, and 447. Public Laws 
of South Carolina (Ed. 1790), page 28. 

t Public laws of South Carolina (Ed., 1790), page 116. 



99 

In 1785 an act "to regulate the admission of attornies at 
law " was passed as follows : 

"Whereas, the admission of attornies at law, in this 
State, hath hitherto depended on a rule of court, which 
experience hath shewn to be productive of great uncer- 
tainty and confusion ; for remedy whereof, 

" I. Be it enacted, by the honorable the Senate and 
House of Representatives, now met and sitting in Gen- 
eral Assembly, That when any person, citizen of the 
United States of America, who hath resided four years 
in any one or more of them, shall have acquired a suf- 
ficient knowledge of the laws of this State to qualify him 
to practise the law in this State, and shall apply for 
admission to the bar, he shall address a petition to the 
judges of the court of common pleas, praying to be 
examined touching his capacity, ability and fitness to 
plead and practise as an attorney; whereupon any three 
of the said judges, or two of them with one of the chan- 
cellors, or any one of them with two of the chancellors, 
shall, and they are hereby directed, diligently and faith- 
fully to examine such person touching his capacity, 
ability and fitness to plead and practice as aforesaid, and 
to whom such person shall also produce satisfactory 
testimonials of his probity, honesty and good demeanor; 
and if such person shall be found duly qualified, the 
said judges on examination shall grant to such person a 
license, from under their hands, to plead and practise as 
an attorney, in any court of law or equity in this State. 

"II. And be it furt/ier enacted by the authority 
aforesaid. That when any person shall have served a 



lOO 



clerkship of four years to some practising attorney of 
the said court of common pleas, who hath practised 
therein for the term of seven years thence before, or to 
the prothonotary of the said court, and shall adduce satis- 
factory proof thereof to the said court; or any native of 
the United States who shall produce proper testimonials 
of his having studied for three years in any foreign uni- 
versity or law college, and is willing and desirous of 
being examined as to his knowledge of law, which the 
judges of the court of chancery or common pleas are 
hereby authorised and required to do in manner afore- 
said, and on such examination shall be found duly quali- 
fied — every such person and persons shall be admitted 
to the bar of the several courts of law and equity in this 
State. 

" III. And whereas, by the articles of confederation, 
every citizen of the United States is entitled to the privi- 
lege of following his calling or profession in each of the 
said United States ; Be it therefore enacted by the 
authority aforesaid, That where any citizen of any of 
the United States hath been admitted to plead and 
practise the law in any court of supreme jurisdiction in 
either of the said United States, and shall become a 
resident of this State, such person may prefer his peti- 
tion to the court of common pleas of this State, setting 
forth such his admission, and shall moreover produce to 
the said court a certificate under the hands of the 
judges of such supreme court, or a majority of them, 
and the seal of their court, that such person is an attor- 
ney of such court, duly admitted, at least two years 
previous to the date of such certificate, and is a person 
of unblemished character for probity, honesty and good 



lOI 



demeanor, whereupon such person shall be admitted to 
the bar of the supreme courts of law and equity in this 
State. 

" IV. And be it further enacted by the authority 
aforesaid, That every person so licensed and admitted as 
aforesaid shall, at the time of his admission, take the 
oath of allegiance and fidelity to this State, and likewise 
the oath of an attorney ; and if any person shall pre- 
sume to act without having taken the said oaths respec- 
tively, such person shall forfeit and pay the sum of one 
hundred pounds sterling, to be recovered by any 
informer who shall sue for the same by action of debt, 
in any court of record having jurisdiction : Provided, 
that nothing contained in this Act shall exclude any 
person or persons who have any business depending in 
any of the courts, either to plead in his own case, to 
put in his plea or answer at the proper office, or file his 
declaration, as the case may be." * 

The present law of South Carolina forbids any person to 
practise in any Court unless he has been admitted and 
sworn as an attorney, under a penalty of $500 for each 
cause in which he shall act. A license to practise as an 
attorney can only be granted by the Supreme Court upon a 
written examination upon a course of study prescribed by 
it, or upon a degree of the Law School of the State Univer- 
sity, and satisfactory evidence of good moral character. 
Upon admission the attorney must take and subscribe the 
oath required by the Constitution of all officers, and the 
oath respecting duelling, in open Court, and his name is 
then entered on the roll of attorneys in Court, 

* Statutes at Large, South Carolina, Vol. IV., page 668. 



I02 



IN VIRGINIA. 



The admission of attorneys was regulated in Virginia in 
1642 by an act which provided that 

" For the better regulating of attorneys and the great fees 
exacted by them, it shall not be lawfull for any attorney to 
plead causes on behalfe of another without license or per- 
mission first had and obtained from the court where he 
pleadeth, Neither shall it be lawfull for any attorney to have 
license from more courts then from the quarter court and 
one county court, and that they likewise be sworne in the 
said courts where they are so licensed, And it is further 
enacted that no attorneys plead in any county court shall 
demand or receive either for drawing petition, declaration or 
answer and for his fifee of pleading the cause of his client 
above the quantitie of 20 lb. of tobaccoe or the value 
thereof, nor that at any pleading in the quarter court shall 
demand and receive either for drawing petition, declaration 
or answer and for his ffee of pleading the cause of his cliant 
above the quantity or 50 lb, of tobaccoe or the value thereof, 
And if any attorney shall transgresse against the premises, 
or shall take above the severall sums aforesaid either by gift 
or love directly or indirectly, such attorney for such offence 
in a countye court shall forfeit 500 lb. tobaccoe. And for 
such offence in quarter court shall forfeit 2000 lb. of tobac- 
coe, one moyety whereof shall be and come to the King, 
and the other moyetie or halfe to the informer, whether it be 
client or adverse party, or any other person whatsoever, and 
may recover the same b)' action of debt in the severall 
courts respectively, And it is further thought fitt that no 



103 

attorney licensed as aforesaid shall refuse to be entertayned 
in any cause as aforesaid, provided he be not entertayned by 
the adverse party, vppon forfeiture of 250 lb. of tobacco in 
a countie court, and 1000 lb. of tobaccoe in the quarter 
court one moyety whereof shall come to the King's majesty 
and the other halfe to the informer aforesaid, Provided this 
act nor any penaltie therein expressed extend to such who 
shall be made speciall attorneys within the collony or to 
such who shall have letters of procuration out of England." * 

In 1645 ^'^ ^^t ^"^^^ passed as follows: 

" Whereas many troublesom suits are multiplied by the 
vnskillfullness and coveteousness of attorneys, who have 
more intended their own profit and their inordinate lucre 
then the good and benefit of their clients : Be it therefore 
enacted, That all mercenary attorneys be wholly expelled 
from such office, except such suits as they have already 
vndertaken, and are now depending, and in case any person 
or persons shall offend contrary to this act to be fined at 
the discretion of the court." f 

In the same year an act was passed repealing the Act of 
1643 for the licensing of Attorneys. J 

In 1647 the following peculiar act was passed: 

'' IT is thought fitt that vnto the act forbidding mercenary 

attorneys, It bee added that they shall not take any recom- 

pence either directly or indirectly. And that it be further 

enacted, That in case the courts shall perceive that in any 

* Laws of Virginia, March, 1642-3, Act LXI. 
+ Laws of Virginia, November, 1645, Act VIL 
X Laws of Virginia, Marcli, 1645-6, Act VI IL 



I04 

case either pit. or defendant by his vveakeness shall be like to 
loose his cause, that they themselves may either open the 
cause in such case of weakness or shall appoint some fitt 
man out of the people to plead the cause, and allow him 
satisfaction requisite, and not to allow any other attorneys 
in private causes betwixt man and man in the country." * 

The fact that no " mercenary " attorneys, that is, attorneys 
acting for compensation could practise in the Courts, 
apparently produced difficulty, and in 1656 all acts against 
such attorneys were repealed and provision was made for the 
admission of attorneys by the following act: 

"THIS Assembly findeing many inconveniencies in the act 
prohibiting mercenary attornies, doe therefore hereby enact, 
and be it by these presents enacted, that that act, and all 
other acts against mercenary attorneys to bee totally repealed, 
And be it enacted that the Governour and Councill shall 
appoint and allow such as they shall find fitt and able to be 
attornies in the quarter courts, and the comissioners to do 
the like by nominateing attornies for the county courts, 
Provided that no attorney be admitted to practice or plead, 
before he hath taken this oath following: 

(The oath is wanting in both MSS.) 

And if any controversies arise between attornie and his 
client about their ffee, it shall be determined in the court 
where the cause is pleaded. Provided allwaies that those 
onely be called councellors at law, who have allreadie been 
qualified therevnto by the lawes of England, and those so 
qualified to enjoy all priviledges those lawes give them." f 

* Laws of Virginia, November, 1647, Act XVI. 
t Laws of Virginia, December, 1656, Act VL 



105 

At this time the acts of the Assembly were not printed 
and this statute was afterwards printed from manuscripts of 
Mr. Jefferson and of Mr. Rand, in both of which the oath 
was found wanting, and that fact is noted in the printed 
statute. 

In March, 1657, the following act was passed, which of 
course repealed the act of 1656, and provided a new oath, 
which may, perhaps, account for the oath in the act of 1656 
not being written out: 

" Whereas there doth much charge and trouble arise by 
the admittance of attorneys and lawyers through pleading of 
causes thereby to maintain suites in lawe, to the greate preju- 
dice and charge of the inhabitants of this collony for pre- 
vention thereof be it enacted by the aiitJioritie of this present 
Grand Assembly that noe person or persons whatsoever 
within this collony either lawyers or any other shall pleade 
in any courte of judicature within this colloney or give 
councill in any cause or controversie whatsoever, for any 
kind of reward or profitt whatsoever, either directly or 
indirectly vpon the penalty of ffive thousand pounds of 
tobacco vpon every breach thereof: And because the 
breakers thereof through their subtillity cannot easily bee 
discerned : Bee it therefore fiirtlier enacted, That every one 
pleading as an attorney to any other person or persons. 
If either pit. or defend't desire it shall make oath. That he 
neither directly or indirectly is a breaker of the act afore- 
said." * 

In March, 1658, the House of Burgesses considered the 

*Laws of Virginia, March, 1657-8. Act CXI I. 



io6 



question whether there should be " a regulation or totall 
ejection of lawyers," and resolved that there should be " an 
ejection," which action was communicated to the Governor 
and Council, who answered it, saying: 

" The Governour and Council will consent to this 
proposition so farr as it shall be agreeable to Magna 
Charta." 

Apparently the law remained in this unsatisfactory con- 
dition until 1680, when an act was passed providing for the 
licensing of lawyers who practised for compensation fixed 
by the act, as follows: 

" Whereas all courts in this country are many tymes 
hindred and troubled in their judiciall proceedings by the 
impertinent discourses of many busy and ignorant men who 
will pretend to assist their freind in his busines and to cleare 
the matter more plainly to the court, although never desired 
or requested thereunto b}^ the person whome they pretended 
to assist, and many tymes to the destruction of his cause, 
and the greate trouble and hindrance of the court; for pre- 
vention whereof to the future. Bee it enacted by the kings most 
excellent majestie by and with the consent of the generall 
assembly, and it is hereby enacted by the authority aforesaid 
that noe person or persons whatsoever shall practice as an 
attorney or appeare to plead in the generall court or any 
county court in this country but such as shalbe first lycensed 
by his excellency or successors thereunto, and that any one 
that shall presume to plead in the generall court or any 
county or other court without such lycense fiirst obtained 
and had, shall forfeite for every such offence comitted in the 



I07 

generall court two thousand pounds of tobacco, and for 
every such offence comitted in the county court six hundred 
pounds of tobacco, the one halfe to our sovereigne lord the 
king, his heires and successors, and the other halfe to the 
informer to be recovered by action of debt, bill plaint or 
information in the said court or courts where such offence 
shalbe comitted. And be it ficrtlier enacted by the authority 
aforesaid that noe attorney or attorneys soe lycensed as 
aforesaid, take, demand, or receive from any person or 
persons, more for any cause in the generall court and bring- 
ing the same to judgment, then five hundred pounds of 
tobacco and caske, and for any cause in the county courts 
and bringing the same to judgment more then one hundred 
and ffifty pounds of tobacco and caske. And it is hereby 
declared and oiacted that every attorney or attorneys shall 
have for every cause he undertakes in the generall court, five 
hundred pounds of tobacco and caske, and for every cause 
he undertakes in the county court, one hundred and fifty 
pounds of tobacco and caske, which he may lawfully clayme 
without any preagreement made with the partyes for the 
same. And be it further enacted by the authority aforesaid, 
and it is hereby enacted that all such attorney and attorneys 
that shall refuse to plead any cause in the generall court 
for the aforesaid ascertained fee of ffive hundred pounds of 
tobacco and caske, shall forfeite and pay to the person 
greived ffive hundred pounds of tobacco and caske, after 
legall conviction, on due proofe thereof made, to be recov- 
ered by due processe of law; and upon refusall of any cause 
in the county court shall pay to the party greived one hun- 
dred and ftifty pounds of tobacco and caske, after legall con- 
viction as aforesaid, to be recovered by due processe of law. 



io8 



Provided ahvaycs that this act nor any clause therein shall 
not extend to debarr any man that is capable of pleading 
and managcing his owne cause and busines in any of the 
said generall or county courts, but that he may be permitted 
and allowed to plead and manage his owne businesse, any 
thing in this act to the contrary notwithstanding." * 

In 1682 the act of 1680 was repealed, but no provision 
was made for attorneys appearing in the Courts without com- 
pensation. The law remained in this condition until the 
statutes were revised in April, 1718, when attorneys were 
allowed fees to be taxed in the bill of costs. 

In 1732 an act was passed requiring lavvj-ers to be 
licensed to practise and to take an oath, as follows: 

" 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 or take any unreasonable fees: 
You shall not wittingly or willingly sue or procure to be 
sued any false suit, nor give any aid nor consent to the 
same, upon pain of being disabled to practice as an attor- 
ney for ever. And furthermore, you shall use yourself 
in the office of an attorney within the court, according 
to your learning and discretion. So help you God." f 

This oath, it will be noticed, is a copy of the oath pre- 
scribed by the New Hampshire and Massachusetts statutes of 
1680 and 1701. This act also provided that the attorney's 

* Laws of Virginia, June, 1680, Act VI. 
t4 Henning, 361. 



109 

oath was to be taken instead of the oath of allegiance and 
supremacy, but the attorneys in the County Courts were also 
required to take and subscribe the English oath of abjuration 
and to subscribe the test. 

Between 1718 and 1732 there were various acts regulating 
the office of attorneys and imposing penalties upon them for 
failing to appear when engaged to do so. Later the act 
requiring a license to appear was repealed, but soon after 
reenacted. In 1742 an act was passed prescribing an oath 
against exacting or receiving exorbitant fees. 

Finally, in 1748, an act was passed providing for licensing 
lawyers, and prescribing the following oath : 

" I, A. B., do swear that I will truly and honestly demean 
myself in the practice of an attorney according to the 
best of my knowledge and ability. — So Jielp me God." * 

From this time until the Revolution, numerous acts were 
passed regulating the conduct and rights of lawyers in many 
ways, but no new oath was required. 

In May, 1776, an act was passed requiring every attorney 
upon admission to practice to take the following oath : 

" I, A. B., do solemnly promise and swear, that I will be 
faithful and true to the commonwealth of Virginia, and 
that I will well and truly demean myself in the office 
of an attorney-at-law. So help me God." f 

The present provision in Virginia as to admission of 
attorneys provides that three or more Judges of the Supreme 
Court of Appeals, voting together, may, under such rules 

* 6 Henning, 140. 
tg Henning, 121. 



no 



and regulations, and upon such examination, both as to 
learning and character, as may be prescribed by the said 
Court, grant a license in writing to practise law in the 
Courts, and requires the Court of Appeals to make and 
promulgate such rules and regulations. The statute also 
requires the attorney to produce before each Court in which 
he intends to appear evidence of his being so licensed, and 
to " take an oath that he will honestly demean himself in 
the practice of the law, and to the best of his ability execute 
his office of attorney-at-law; and also, when he is licensed in 
this state, take the oath of fidelity to the commonwealth." * 



* Virginia Code, 1904, Chapter 154. See also 4 Virginia Law Register, 326; 13 
Virginia Law Journal, 327 ; Virginia Code, 1849, page 635. 



1 1 1 



IN VERMONT. 

The first law in regard to attorneys in Vermont was passed 
March 3, 1787, entitled "An act for the appointment and 
regulating of Attornies, and pleadings at the bar," as fol- 
lows : 

"BE it enacted by the General Assetnbly of the State of 
Vermont, That the Supreme and County Courts in 
this State shall appoint, and they are hereby empowered 
to nominate and appoint, Attornies, as there shall be 
occasion, to plead at the bar; which Attornies shall, 
before the Court appointing them, take the following 
oath, viz. : 

" ' You swear by the ever-living God, that you will do 
no falsehood, nor consent to any to be done, in the 
Court; and if you know of any to be done in the Court, 
you shall give knowledge thereof to the Justices or 
Judges of said Court, that the same may be reformed. 
You shall not wittingly and willingly, or knowingly, 
promote, sue, or procure to be sued, any false or unlaw- 
ful suit, or give aid or consent to the same You shall 
demean yourself in the office of an Attorney within the 
Court, according to your best learning and discretion, 
and with all good fidelity, as well to the Court, as to the 
client. So help you God.' 

" The administering and taking of which oath, together 
with the appointment of any Attorney, shall be regis- 
tered by the Clerk of the Court wherein he shall be 
admitted, and shall be a sufficient evidence of his 
admission as an Attorney at the bar, in any Court in 
this State. 

" Provided ahvays, That the Supreme Court of Judica- 



I 12 



ture in this State, shall hereafter have the exclusive right 
of appointing and admitting Attornies to plead at their 
bar; and no Attorney, who shall be admitted to plead 
in the County Courts, as aforesaid, (except the several 
State Attornies) shall thereby be authorized or empow- 
ered to plead in the Supreme Court, without permission 
or licence first obtained from the Supreme Court. 

" And be it further enacted by the authority aforesaid, 
That in each county in this State, there shall be one 
State's Attorney, who shall prosecute, manage, and 
plead, in the county wherein he is appointed, in all 
matters proper for, and in behalf of, this State ; which 
Attorney shall be appointed by the respective County 
Courts, and shall have a right to plead, in behalf of the 
State, as well in the Supreme as County Court, in the 
county where he is appointed : and the several Attornies, 
who shall be allowed and appointed as aforesaid, shall, 
from time to time, be under the direction of the Courts 
before whom they plead ; and the several Courts shall 
have power to suspend or displace any of their Attor- 
nies, for misdemeanors, or fine them not exceeding ten 
pounds, for each offence. 

" And that persons allozved as Attornies may be dnly 
qualified to practice. 

" Be it further enacted by the authority aforesaid, That 
no person shall hereafter be licenced, by either of the 
Courts above mentioned, to practice the law in this 
State, without such person applying shall have pre- 
viously studied at least three years with a licenced 
Attorney of this State, and, upon examination by the 
said Court, shall be found to have a competent knowl- 



113 



edge of the laws ; or unless the person applying for 
licence shall have obtained a degree of Bachelor of Arts, 
in some University or College, and have studied at least 
two years with a licenced Attorney of this State, and 
upon examination by the said Court, shall be found 
to have a competent knowledge of the laws for that 
purpose." * 

The form of Attorney's oath prescribed by the Act of 1787 
is now prescribed by law. f 



* Statutes of Vermont, February and March, 1787, page 22. 
Public Statutes ofVermont (1906), page 1234. 



114 



IN OTHER STATES. 

With the exception of the States of South Dakota, Okla- 
homa and Maine, which have adopted substantially the oath 
of office prescribed in New Hampshire, Connecticut and 
Vermont, all the States since admitted to the Union except 
two have either adopted substantially the form of oath 
prescribed in New York, or that prescribed by the rule of 
the Supreme Court of the United States. But in Colorado 
the candidate for admission is also required to swear that he 
has never been disbarred or convicted of felony, and in 
Kentucky and Nevada to swear that he has not fought a 
duel nor sent or accepted a challenge, nor acted as second, 
nor aided any person thus offending.* And in Minne'sota 
he is also required to swear that he will behave himself in 
an upright and courteous manner to the best of his learning 
and ability, f 

The two exceptions are the State of Idaho, where the oath 
prescribed is as follows : 

" I. To support the constitution and laws ol the 
United States and of this state ; 

2. To maintain the respect due to the courts of 
justice and judicial officers ; 

3. To counsel or maintain such actions, proceedings, 
or defenses only as appear to him legal or just, except 
the defense of a person charged with a public offense; 

4. To employ, for the purpose of maintaining the 
causes confided to him, such means only as are con- 

* Constitution of Kentucky, Section 228 ; Constitution of Nevada. 
t Laws of Minnesota. 



115 

sistent with truth, and never seek to mislead the judges 
by an artifice or false statement of fact or law ; 

5. To maintain inviolate the confidence, and at 
every peril to himself, to preserve the secrets of his 
clients ; 

6. To abstain from all offensive personality, and 
to advance no fact prejudicial to the honor or reputa- 
tion of a party or witness, unless required by the justice 
of the cause with which he is charged ; 

7. Not to encourage either the commencement or 
the continuance of an action or proceeding from any 
motive of passion or interest; 

8. Never to reject for any consideration personal to 
himself the cause of the defenseless or the oppressed ; " * 

and the State of Washington, where the oath prescribed is 
this : 

" 1st. I do solemnly swear that I will support the 
Constitution and laws of the State of Washington. 

2d. That I will maintain the respect due to Courts 
of Justice and Judicial Officers. 

3d. That I will counsel and maintain such actions, 
proceedings and defenses only, as appear to me legal 
and just; except the defense of a person charged with a 
public offense. 

4th. To employ for the purpose of maintaining the 
causes confided to me such means only as are consistent 
with truth and never to seek to mislead the judge by 
any artifice or false statements of facts or law. 

* Idaho Code, 1901, Section 3094. 



ii6 



5th. That I will maintain in\'iolate the confidence 
and, at every peril to myself, preserve the secrets of my 
client. 

6th. That I will abstain from all offensive person- 
ality and advance no fact prejudicial to the honor or 
reputation of a party or witness unless required by the 
justice of the cause with which I am charged. 

7th. That I will never reject, from any consideration 
personal to myself, the cause of the defenseless or 
oppressed. So help me God."* 

The laws of Oklahoma and South Dakota also prescribe 
as duties of the attorney the obligations of the oath pre- 
scribed by the oath in Idaho quoted above, f 

This extended and necessarily repetitious compilation of 
the colonial, provincial and early State statutes of the orig- 
inal States of the Union and summary of the oaths of office 
in the other states shows how the lawyer's office has been 
established and what it now is in the United States better 
than any mere statement, however carefully made, could 
show. It also shows how the lawyer's oath has been impaired 
in most of the States and in the Federal Courts, so that it 
has ceased to be a distinctive oath of office. 

This ought to be reformed. The oath ought to set forth 
something of the duties and obligations of the lawyer's 
office. I believe this can be best done by restoring where 
it has been abandoned, and by putting in force where it has 
never existed, substantially the form of the oath of office 

* Laws of Washington. 

t Statutes of Oklahoma, 1903, Section 226 ; Statutes of South Dakota, Section 734. 



117 

which was used in the New England States in the colonial 
times. This form breathes the true spirit of the common 
law. It embodies those duties which were really embodied 
in and understood to be imposed by the oath of a sergeant 
or a pleader under the ancient English law. This oath 
smells of the common law as a lawyer's oath of office under 
the common law should. No oath framed upon the obli- 
gations of the office as understood under the civil law is 
appropriate to the obligations imposed by the office under 
the common law. 

Admission to the Bar should, I think, also be by the high- 
est Court in the State and in open court. The oath of 
office should be administered by the Chief Justice, or some 
Justice of that Court, and he should then explain to the 
candidates the significance of the oath, and charge them as 
to the professional duties which it imposes, according to the 
ancient method in which sergeants-at-law were instructed 
upon receiving that degree. 

The administration of the oath and the admission to the 
office of an attorney should be made as impressive and as 
instructive as possible, to the end that those who are 
admitted to the lawyer's office may understand its powers, 
responsibilities and duties, and may be thereby made to 
know and to feel the importance and the dignity of the office 
which they take upon themselves. In most States nothing 
of this kind is done and in none of the States, so far as I 
am aware, is there any instruction by the Court or any per- 
son appointed by the Court, at the time the oath of office is 
administered, as to what it means, and what the duties of the 
office are. 

In the Federal Courts this is not so necessary, because no 



Ii8 



persons are admitted in the Supreme Court who have not 
been for three years before admitted to practise as attorneys 
or counsellors in the Supreine Courts of the States to which 
they respectively belong.* 

In the other Federal Courts it is very rare, I think, 
that any person is admitted to practice who has not been 
previously admitted in a State Court. 

The following as to the lawyer's oath in England, France 
and Germany shows what the oath in those countries now is. 



* Rules Supreme Court, U.S. R., 210, 472. 



119 



The Lawyer's Oath in England. 
The order of serjeants-at-law has ceased to exist, and 
with it has gone the ancient oath of office of a sergeant-at- 
law. Attorneys and soHcitors now take an oath prescribed 
by statute as follows : 

" I , do swear (or solemnly 

affirm, as the case may be) that I will truly and honestly 
demean myself in the practice of an attorney (or solici- 
tor, as the case may be) according to the best of my 
knowledge and ability, so help me God." * 

Barristers are not required to take any oath or to sign any 
roll, but assume practice as soon as they are admitted by 
one of the Inns of Court. f 

The Lawyer's Oath in France. 
In 1803 the law of the French Republic concerning the 
organization of the law profession provided that the " candi- 
date is expected to offer before the Court to which he is 
admitted, the oath (of fidelity) exacted of all the officials of 
the state, and in addition to swear that he will perform his 
duties with exactness and probity. "J 

In 1804, by the law concerning law schools, it was pro- 
vided that 

" Attornies and barristers (Les avocats et avoues) 
are expected at the publication of this present law and, 

* 6 and 7 Vict. Chapter 73, Sections 15, 16, 17, 18, 19. 

t Marchant, Barristers-at-law, pages 12, 31, and 32 Vict. Chapter 72 (1868). 
X Bulletin des Lois de la r^publique fran^aise. 3" s6rie, vol. 7. No. 258, Law, No. 
2440, pages 593-603, Section 47. Lois of March 16, 1803 = 25 VentOse, year XI. 



I20 



in the future, before entering upon their functions, to 
offer oath neither to utter nor to pubHsh, as defending 
lawyers or counsellors, anything contrary to the laws, 
to the regulations, to good manners (morals), to the 
stability of the state and the public peace ; and never 
to disregard the respect due to the courts and the 
public authorities." * 

In 1810, in the law concerning lawyers and advocates, it 
was provided that 

"The reception (of the candidate) shall take place 
at a public meeting, upon presentation of an old lawyer 
(ancien avocat) and the consent of the Attorney 
General. The candidate shall then offer an oath as 
follows : 

"'I swear obedience to the constitutions of the 
Empire and fidelity to the Emperor; neither to utter or 
publish anything contrary to the laws, to the regula- 
tions, to good manners (morals), to the stability of the 
state and the public peace ; and never to disregard the 
respect due to the courts and the public authorities; 
not at any time to take or defend a case which, in my 
heart and conscience, I do not believe to be right.' " f 

This oath remains practically unchanged, except that upon 
the Restoration and during the Second Empire changes were 
made in the political part of the oath, and that the Third 

* Ibidem, Volume 9, No. 356, pages 701-709. Laws of year XII. (22 Ventose = 
March 13, 1804), pages 706, 707. 

t Bulletin des Lois de 1' empire frangaise. 4" s6rie. Vol. 13 (Laws of 1810). No. 
332 Laws of December 14, 1810 (pages 569-579). Sect. 14, page 572. 



121 



Republic has omitted the poHtical oath and the professional 
oath alone is now required. * 

The Lawyer's Oath in Germany. 
The provision as to the lawyer's oath in Germany is that 
" Immediately upon admission, the lawyer offers at a public 
session of the Court, to which he is admitted, the following 
oath : 

" I swear by God almighty and all-knowing, to per- 
form the duties of a lawyer conscientiously. So help 
me God." f 



* Bulletin des Lois du Royaume de France, y s6rie. Vol. 15 (Laws of 1822), 
no. 566, pages 513-520; especially ^^ 38 (pages 518, 519). Bulletin des Lois de la 
Republique fran9aise. ic s6rie. Vol. 9 (Laws of 1852), pages 929-930; especially 
§ 3 (ps^ge 930). Bulletin des Lois de TEmpire fran9aise. ii'- s6rie. Vol. 35 (Law of 
March 10, 1870), pages 357, 358. 

t Reichs-Gesetzblatt, 1878. No. 23. Law, No. 1258, entitled Rcchtsanwaltordnung. 



BIBLIOGRAPHY. 



The following is a partial list of authorities consulted in 
the preparation of this book: 

PAGE 

Abbreviatio Placitorum in Domo Capitulari Westm. asservat., 295 b . 39 

Acts of Assembly, passed in the Province of Maryland, from 1692 to 

1715. Edition of 1723, page S3 52 

Acts and Laws of His Majesty's English Colony of Connecticut in New- 
England in America. Edition of 1750, page 180 . . . . 42 

Acts and Laws of His Majesty's Province of New-Hampshire. In New 

England. Edition of 1 771. Chap. XXXVH., page 50 . . 71 

An Act for the security of her Majesty's person and government, and of 

the succession to the crown of Great Britain in the protestant line, 44 

Attorneys and their Admission to the Bar in Massachusetts. H. R. 

Bailey, page 13 ......... . 60 

Bell, C. The Supreme Court of the States and Provinces of North Amer- 
ica. New York. 1893. Vol. L, Series 2, page 66 . . . 76 

Body of Liberties, of Mass., Whitmore Reprint, page 39 . . . . 56 

Book of Oaths, The, and the severall forms, both antient and modern. 

Editions of 1649 and 1689 ........ 29 

Branch f/ rt/. , 70 N.J. Law 77 

Bulletin des Lois de la republique fran9aise, 3* serie. Vol. 7, No. 258, 
Law, No. 2440, pages 593-603, Sect. 47. Lois of March 16, 
1803 = 25 Ventose, year XL . . . . . . . 119 

Ibidem, Vol. 9, No. 356, pages 701-709. Laws of year XIL (22 Ventose 

= March 13, 1804), pages 706, 707 120 

Bulletin des Lois du Royaume de France, "]" serie. Vol. 13 (Laws of 
1822), No. 566, pages 513-520, especially Sect. 38 (pages 518, 
519). Bulletin des Lois de la republique franfaise, lo'' sdrie. Vol. 
9 (Laws of 1852), pages 929, 930, especially Sect. 3 (page 930;. 
Bulletin des Lois de I'Empire franfaise, il'^' serie. Vol. 35 (Law of 
March 10, 1870), pages 357, 358 121 

(123) 



124 



Bulletin iles Lois de Tempire frain;aise, 4*' serie, Vol. 13 (Laws of 1810), 
No. 332; Laws of December 14, iSio (pages 569-579), Sect. 14, 
page 572 120 



Edition of 



Capitularies of Charlemagne ...... 

Compilation of the Laws of Georgia, 1S00-1810, Clayton. 

1813, page 331 

Coke's Second Institute (Ed. 1817), pages 212-214 . . . . 

Colonial Laws of New York, from 1664 to the Revolution, Edition of 1894, 

Vol. L, page 351 

Collection, A, of the Statutes of the Parliament of England in force in the 

State of North Carolina. Published according to a Resolve of the 

General Assembly. By Francois Xavier .Martin, Esq., Counsellor 

at law, 1792, pages 10, 356 . 
Connecticut Colony Records, Vol. 5, page 48 
Constitution of Kentucky, Sect. 228 
Constitution of Nevada 

Danish Laws, The : Or the Code of Christian the Fifth, Faithfully trans- 
lated for the Use of the English Inhabitants of the Danish Settle- 
ments in America. London, 1756, pages 58, 59 . 
Digest of the Laws of Georgia, Edition of 1801, page 406 
Digest of the Laws of Georgia, Edition of 1802, page 41 
Digest of the English Statutes in force in the State of Georgia. Schley's 
Edition of 1826, page 353 ........ 



13 

II 

78 




25 
49 



48 



English Citations : 

3 Edw. I., St. I. Westm., c. 29 

6 Edw. I., St. Gloucester, c. 8 . 

12 Edw. 2, St. I., c. I. 

13 Edw. I., St. I., Westminster 2, c. 10 
Statute of Carlisle, 15 Edw. 2, st. I. 

4 Henry 4, c. 18 
4 Henry IV., Cap. 18, 1402 

20 Henry 3, St. Merton, c. 10 . 

7 Richard 2, c. 14 . 
6 and 7 Victoria, Chap. 73, Sects. 15, 16 

32 Victoria, Chap. 72 (1868) . 
English Statutes at Large, Vol. 4, page 654 
Ex parte Garland, 4 Wallace, 333 . 



I7> 



18, 19 



4' 
41 
41 
41 
41 
41 
27 

41 
41 
119 
119 



125 



PAGE 



Fortescue, De laudibus legum Angliae . . . With the notes of Mr. 

Seidell. 1 74 1. Pages 113, 115, ii6 34 

Form of Writ to call a person to lie a Barrister in Massachusetts, pre- 
scribed in 1783 .......... 68 

Fournier, Paul, Les Officialites au moyen age, Etude sur I'organisation, la 
competence et la procedure des tribunaux ecclesiastiques ordinaires 
en France, de 11 80 a 1328, Paris 1880, page 21, lines 1-6 . . 20 

Freeman's Growth of the English Constitution, Chap. II. . ... 10 

General Statutes of Connecticut, 1902, Sect. 4795 43 

General Statutes of Massachusetts (i860), Chap. 121, Sects. 30, 31 . 64 

General Statutes of New Jersey, 1896, Vol. 2, pages 2330-2534 . . 77 

Grandeur of the Law, 1684, Phillips. 
Grandeur of the Law: or, the Legal Peers of England. Edward Foss. 

London, 1843. 
Grants and Concessions, and Original Constitutions of the Province of 

New Jersey, etc., page 223 . ....... 74 

Grimm, Deutsches Worterbuch, Vol. 8 (1893), column 424 ... 39 

Hale's History of the Common Law of England, Chap. 6 . . . 13 
Handbook of London, Peter Cunningham, Vol. II., p. 391. 

Ilarleian Mss. (298, fo. 56) 38 

Hening, Statutes at Large of Virginia. 1619-1792. Vol. 4, page 361 ; 

6, page 140; 9, page 121 108, 109 

Herbert, Antiquities of the Inns of Court and Chancery . . . London, 

1804, page 358 ^/ j^(7 34 

History of the French Bar, Ancient and Modern, by Robert Jones, pages 

100, 103 14 

Heyne, Moriz, Deutsches Worterbuch, Vol. 3 (1895), column 49 . . 38 

Hoar vs. Wood, 3 Metcalf (Mass.) 197 9 

Hutchinson vs. Stephens, i Keen's Reports, 659 at 668 .... 8 

Idaho Code, 1901, Sect. 3094 II4> "5 

In re Jewitt, ■t^T) Bevan, 559 ......... 8 

In re Thomas, 36 Fed. Rep. 243 7 

Introduction to the Red Book of the Exchequer, Part I., Edited by 

Hubert Hall of the Public Record Office, 1896 . . . . 28 



126 



Labbe, Philippe, and (labriel Crossart, " Sacrorum conciliorum nova et 

amplissima coUectio . . . editio novissima a . . . patre 

Mansi edita. Florentiae, 1759" Reproduction in fac-simile. 

Paris, Welter, 1901- . Vol. 23, columns 216, 240, 241, 411, 

412; Vol. 24, columns 216, 1149 ....... 20 

Laws of the State of Delaware, Edition of 1797, Vol. I., Chap. XIII., 

Sect. I. 1704; Chap. LIV., Sects. 26, 27, 28, 1721 . . . 45,46 
Laws of the State of Delaware, Revised Code, 1893, pages 234, 698 . 47 

Laws of Maryland, The, Edition of i8ii,Vol. L, Chap. XLVIIL, Sects. 

12, 13 54 

Laws and Resolves of Massachusetts, 1785, Chap. 23 ... . 62 

Laws of Minnesota ........... 114 

Laws of New Hampshire, Province Period, 1679-1702, Vol. I., pages 

105, 123 69, 70 

Lawsof New Jersey r 1800), pages 355, 377 ...... 75 

Laws of New York, Edition of 1789, Vol. 2, page 64 . . . •79. 84 
Laws of the State of North Carolina, 1715-1790, Chap. 14 . . . 89 

Laws of Pennsylvania, Edition of 1797, Vol. I., page 185 ... 91 

Laws of Pennsylvania, Edition of 1728, pages 327, 336 .... 93 

Laws of Virginia, March, 1642-3, Act LXL ; November, 1645, ^^^^ VIL; 

March, 1645-6, Act VIII 102, 103 

Laws of Virginia, November, 1647, Act XVI.; December, 1656, Act 

VI. ; March, 1657-8, Act CXIL; June, 1680, Act 51 . 104, 105, 108 

Laws of Washington . . . . . . . . . . 116 

Lives of all the Lord Chancellors, Lord Keepers, and Lord Commissioners 

of the Great Seal of England. 2 vols. London. 1712. Vol. II., 34 



Mackay vs. Ford, 5 H. & X., 792 9 

Manning, James. Servians ad legem. A report of proceedings before 
the Judicial Committee of the Privy-Counci and in the Court of 
Common Pleas in relation to a Warrant for the suppression of the 
antient privileges of the Serjeants at Law, with explanatory docu- 
ments and notes. London. 1840, pages 222-3-4-6; 170, 35-37. 39 
Marchant, Barristers-at-law, pages 12,31 . . . . .■ . 1 19 

Maryland Code, The, 1904, Article X., pages 288, 289 .... 55 

Mass. Col. Laws, 1672-1678, Whitmore Edition, pages 34,41, 211, 266 . 56, 58 
Matthew of Paris, English History, Vol. I., page 91 (Bohn, 1852) . . 15 

Maugham, R. A Treatise on the Law of Attorneys, Solicitors, and 

Agents, with notes and disquisitions. London. 1825, page 6 . 40 



127 



Miller, Justice, In re Thomas, 36 Fed. Rep. 243 
Mirror of Justices, The, Selden Edition, 1895, P^^ges 47, 



PAGE 

6 
12, 13 



"Oaths: their Origin, Nature, and History," by James Endell Tyler, 

B. D. London, 1835, P^g^ 30° 20 

Opinion of Chief Justice Shaw in Lewis vs. Sumner, 54 Mass. 271-273 . 64-66 
Order of Supreme Judicial Court, Massachusetts, 1781 . . . . 66,67 



Paxson, C. J., in Splain's Petition, 123 Penn. St. 527 

Pepper and Lewis. Digest of the Laws of Pennsylvania. 1700-18 

2 vols. 1896 

(Plymouth) Colony Laws, 1634-1779, compiled. Boston, 1814. Chap. 36 
Province Laws, 1692-1714, Vol. L, pages 75, 287, 374,467 
Public Acts of North Carohna, Edition of 1804, Vol. L, page 210 
Public Laws, North Carolina, 1907, Chap. 941 .... 

Public Laws of Rhode Island, 1636-1705, page 116 (reprint edited by 

Sidney S. Rider, 1896) 

Public Laws of South Carolina (Edition 1790), pages 28, 1 16 
Public Statutes of Massachusetts, Chap. 159, Sects. 35, 36 
Public Statutes of New Hampshire, Chap. 213 .... 

Public Statutes of Vermont (1906), page 1234 .... 

Pulling, Order of the Coif ........ 



93 
56 
58-61 
89 
90 

95 
98 
64 

72, 73 

"3 

34.41 



Records in custody of Clerk of Supreme Court (R.I.), Book I., page 404, 

April 27, 1765 

Recueil generale des anciennes lois franjaises depuis Pan 420 jusqu' a la 

revolution de 1789; Paris, Tome IL (1270-1308), pages 652- 

654, No. 247; Tome XH. (1514-1546), No. 235, page 515 . 
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98 

Revised Laws of Massachusetts (1902), Chap. 165, Sect. 42 . . . 
Revised Laws of North Carolina, 1905, Chap. 5, Sect. 209; Chap. 56, 

Sect. 2360 ........... 

Revised Statutes of Delaware, 1893, Chap. XCH., page 698; Chap. 

XXIV., Sect. 4 

Revised Statutes of Massachusetts (1836), Chap. 88, Sect. 19-27 inclusive, 
Rhode Island, Code of Laws of (Staples), 1647, page 58 . . . 



95 



18, 19 



26 
64 

90 

47 
63 
94 



128 



Rules March Term, iSio, 6 Mass. Rept. 382 . 
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Rules Supreme Court adopted March, 1886, 15 R.I., 632 
Rules Supreme Court, U.S.R., 210, page 472 . 
Ruohs vs. Backer, 6 Heisk (Tenn.) 406 ... 



South Carolina Statutes at Large, Vol. 2, pages 401, 420, and 447 

4, page 668 

Splain's Petition, 123 Penn. St. 527 .... 

Statutes of Oklahoma, 1903, Sect. 226 .... 
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Statutes of Vermont, February and March, 1787, page 22 
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Viner's A General Abridgment (1746), Title Pauper, etc. 
Virginia Code, 1849, P^g^ 635; 1904, Chap. 154 
Virginia Law Journal, Vol. 13, 327 ..... 
Virginia Law Register, 4, 326 ...... 



Vol 



I'AGK 

64 

96 

96 

118 



lOI 

5 
116 
116 

"3 
40 



19 
no 
no 
no 



Washburn, E., Sketches of the Judicial History of Massachusetts, pages 

50, 52, 53 56, 57 

Whitelocke's Memorials ......... 34, 35-37 

Winthrop's History, Vol. 2, page 36 ...... . 56 



INDEX. 



Abbreviatio placitorum in Domo Capitulari Westm. asservat., 295 b., quoted, 39. 

Advocate, German equivalent for, 38 (note).* 

American colonies of England and their conception of the lawyer's office, 38-41. 

Apprentices in early English law, 32, ;^;^. 

Attorney and client, 7 ; as defined by Lord Whitelocke, 36, 37 ; in Danish laws of 
Christian V., 24, 25; in early colonial statutes, 40; in early English law, 
36, 40,41; in early French law, 18; in Gothic law, 39, 40; in State of 
Massachusetts, 64-66. 

Attorney and the Court, 35, 36, 64-66. 

Attorney-General, oath of, 31. 

Attorney, appearance by, first permitted, 41; legislation in colonies and provinces 
of England in North America as to, 38. 

Attorneys, in Colonial Massachusetts, 56-58 ; in the Office of Pleas and their 
oath, 28. 

Attorneys: admission by the courts, 41; special regulations as to, in Delaware, 
44-47; Maryland, 52-54; Massachusetts, 60, 61; New Jersey, 77 ; North 
Carolina, 88; Pennsylvania, 93; Rhode Island, 95; South Carolina, 98- 
loi ; Virginia, 102-104. — Affidavit in Delaware, 47. — Conduct regulated 
in Maryland, 52, 54, 55. — Fees, act of Virginia against mercenary attorneys, 
103, 104, 109; in colonial Maryland, 52; in early English law, 26, 28; in 
early French law, 14, 16, 17; in New Hampshire province, 71; in North 
Carolina province, 86, 87; regulated in province of Massachusetts Bay, 
58, 60, 61. — Oath, earhest English record of, 27, 28; first complete form 
in English colonies of America, 69; form from " Book of Oaths," 30; 
in Massachusetts, 58, 59, 60, 61-63; why required? 3. — Oath and 
duties, as prescribed by Frederic II., 19; in Danish laws of Christian V., 
24, 25; in early Enghsh law, 10, 23, 24, 27, 28; in early French law, 14, 
16, 20-23. — Office, as viewed by United States Supreme Court, 5. 
See also articles, barrister, lawyer, serjeant-at-law, names of states and 
of countries. 

Barrister: in early English law, 32,33; in France, 119, 120; in Massachusetts, 
66-68; in modern English law, 40. 
(129) 



130 

" Body of Liberties " (1641), 56. 
" Book of Oaths," 29-32. 

Capitularies of Charlemagne on the legal profession, 13, 14. 

Chateau Gontier, reform canons of council of, on oath and duties of advocates, 21, 

22. 
Coke, Sir Edward, quoted, 10, 11. 
Colonial laws on oath and duties of lawyers, 40, 42, 43, 44, 48, 52, 56-60, 70, 71, 

74-76, 78, 86-88, 91-93, 94, 97, 98, 102-109. 
Colorado, attorney's oath in, 1 14. 
Connecticut, lawyer's office and oath in, 42, 43. 
" Conteur," countor, 40. 

Danish laws of Christian V. on the lawyer's oath, 24, 25. 

Delaware: affidavit of attorney-at-law, 47; colonial law on admission and oath 

of lawyers, 44-46; present law, 46. 
Dudley, President Joseph, mentioned, 69. 

Edward I. and the legal profession, 10. 

England : apprentices in early law of, 32, 33 ; attorney and court in same, 
38, 40; attorney's oath and duties as prescribed in same, 14, 15, 23, 24, 
27, 28; attorneys' fees determined in same, 26, 28; barristers in same, 
33,40; earliest authentic forms of lawyer's oath, 25-28; lawyer's oath in 
medieval, 15, 23, 24; in modern, 1 19. 

English bar, establishment of the order of the, 9. 

English colonies in North America and legislation as to attorneys, 38. 

Fortescue, Sir John, on serjeants-at-law, 32—34. 

France: attorneys' fees in medieval, 14, 16, 17; attorneys' oath and duties 

according to early law of, 14, 16, 20-23; barristers in, 119, 120; oath in 

modern, 119, 120; oaths decreed at councils of Chateau Gontier, 21, 22; 

and of Rouen, 20; at synods of Langeais, 22, 23; and of Tours, 22; 

official character of lawyers early recognized, 18. 
Francis I., edict of, recognizing character and enforcing duties of lawyers, 18, 19. 
Frederic II. prescribes oath of advocates, 19, 20. 

Garland case and the United States Supreme Court, 4, 5. 

Georgia, lawyer's office and oath in, 48-51. 

Germany, lawyer's oath in, 121. 

Gothic law, attorney and client in, 39, 40. 

Grand Coutumier de Normandie on the duties of lawyers, 13. 



131 

Idaho, attorney's oath in, 114. 

Juhel de Mayenne, archbishop, 21, 22. 

Kentucky, attorney's oath in, 114. 

King's council, oath of, 30. 

King's serjeant-at-law, 25; oath of, 11, 25, 26. 

Langdale, Lord, on the duty of lawyers and their administration of justice, 8. 

Langeais, synod of, ordains concerning pleaders' or advocates' oath, 22, 23. 

Lawyer and client; see attorney and client. 

Lawyers : conduct regulated by Statute, Primer Westminster, 10. — Duties and 
responsibilities, in general, 7; in early English law, 12; in early French 
law, 13, 14; in Norman law, 13; similar in Europe in the Middle Ages 
and in Roman Empire, 19; their place in the modern oath, 116, 117; 
under ordinance of Francis L, 18, 19; of Philip the Bold, 16, 17. — Oath, a 
condensed code of legal ethics, 9; earliest English record of, 25-28; 
importance of uniformity of, 9, 116, 117; origin and content of, 9, 10; 
significance of, 3, 4. — Oath and office in American colonies of England, 
38-41 ; Colorado, 114; Connecticut, 42, 43; Delaware, 44-47; Denmark, 
24, 25; England, 15, 23, 24, 119; France, 14, 15, 19-23, 119, 120; 
Georgia, 48-51; Germany, 121 ; Idaho, 114; Kentucky, 114; Maine, 114; 
Massachusetts, 56-69; Minnesota, 114; Nevada, 114; New Hampshire, 
69-71 ; New Jersey, 72-77; New York, 78-85; North Carolina, 86-90; 
Oklahoma, 114, 116; Pennsylvania, 91-93; Rhode Island, 94-96; South 
Carolina, 97-101 ; South Dakota, 114, 116; Vermont, 111-113; Virginia, 
102-U0; Washington, 115, 116. — Office, tenure of, 4. — Official char- 
acter and duties, 4, 7, 18, 19. — Profession, its age, 9, 10; recognition of, 10. 
See also attorney, barrister, serjeant-at-law. 

Maine, attorney's oath in, 114. 

Mansi's Concilia, quoted, 20-24. 

Marlebridge, statute of, 35. 

Maryland: admission of attorneys, 52, 53; their fees and conduct regulated, 52, 
54, 55 ; their office and oath, 52-55. 

Massachusetts province: attorneys-at-law, 56-68; attorneys' fees regulated, 58, 
60, 61 ; their oath, 58, 59, 60; barristers, 66-68; first regulation as to 
attorneys, 57; limitations of, and later regulations concerning, pleading, 
57, 58; statute with regard to admission of attorneys-at-law, 60. — .State: 
admission of attorneys, 61, 62, 69; attorney, client and court, 64-66; 
attorney's oath, 61-63; barristers, 66-68; disl)arment of attorneys, 63. 

Matthew of Paris, quoted, 15. 



132 

" Mercenary attorneys," acts against, in Virginia, 103, 104, 109, 

Merton, statute of, 41. 

Miller, Justice, on the lawyer's office, 6. 

Minnesota, attorney's oath in, 1 14. 

" Mirror of Justices," 11-13, 36. 

Nevada, attorney's oath in, 114. 

New Hampshire: attorneys' oath in colony and State of, 70, 71-73; their fees in 

colonial, 71. 
New Jersey : admission of attorneys, 77; their oath of allegiance and of office, 

75, 76; degree of serjeant-at-law, 75, 76; disbarment of attorneys, 

76, 77; first reference to attorneys, 74; statutory provision as to their 
conduct, 76, 77. 

New York: attorneys' oath and office, 81, 84, 85; their disbarment, 81, 83; first 
provincial legislation as to attorneys, 78; State regulation as to their 
admission, 79-84. 

Norman law and English law, 13, 40. 

North Carolina: English provincial statute in force as to lawyers, 86-88; disbar- 
ment and suspension of attorneys, 90; jurisdiction of courts, etc., as to 
attorneys, 89 ; their oath, 89, 90; State legislation as to their admission, 
88-90. 

Oklahoma, attorney's oath in, 1 14, 1 16. 

Otto, Cardinal and legate of Pope Gregory IX., 15. 

Paris, Parliament of, regulates attorneys' office, 14. 

Paxson, Chief Justice, on lawyers' office, 6. 

Pennsylvania: attorneys' oath of office, 92; their disbarment, 92, 93; first pro- 
vision of law as to attorneys, 91 ; present oath of admission, 93. 

Philip the Bold, ordinance of, concerning functions and fees of attorneys, 16. 

Philippe de Valois, ordinance of, 14. 

Pleaders, 9, 10; " Mirror of Justices " on duties of, 12, 13; oath of, as decreed by 
synod of Langeais, 22, 23; prior to the Xorman Conquest, 40. 

Pleading, limitations of, in colonial Massachusetts, 57, 58. 

Primer Westminster, statute of, 41 ; regulates conduct of lawyers 10, 86, 97. 

Profession of the law, its age and recognition, 9, 10. 

Province of Massachusetts Bay; see Massachusetts colony. 

Red Book of the Exchequer preserves earliest authentic record of an attorney's 
oath, 27, 28. 

\ 



133 

Rhode Island province: attorneys' oath, 94; first act as to attorneys, 94. — State: 
admission of attorneys; their oath, 96. 

Right of parties to appear by attorneys foreign to ancient English common law, 
38; right expressly given in early colonial statutes, 40; first permitted, 41. 

Robert of Winchelsea's statiila et ordinationes prescribing form of oath of advo- 
cates and procurators, 23, 24. 

Roll of oaths of the reign of Queen Elizabeth, quoted, 25, 26. 

Roman law and the attorney, 19. 

Rouen, council of, decrees oath and duties of advocates, 20. 

St. Paul's, London, council of, on oath of advocates, 14, 15. 

Serjeant-at-law, 9, 10, 25 ; degree of, in New Jersey, 75, 76, and in colonial 

North Carolina, %Q; in Chaucer, 34; in early English law, 32, 34; Lord 

Commissioner Whitelocke on character of office and duties of, 35-37; 

oath of, 10, II, 26. 
Serjeant Marshall, quoted, 38. 

Shaw, Chief Justice, on relation of attorney to court and to client, 64-66. 
Solicitor, the Modern English, 40. 
Solicitor General, oath of, 31. 
South Carolina province: admission of attorneys provided for, 98: English 

statutes in force as to lawyers, 97. — State : regulates admission of attor- 

neys-at-law, 99-101 ; oath of attorney in, loi. 
South Dakota, attorney's oath in, 114, 116. 
Stoughton, Hon. William, 59, 60. 

Tours, synod of, concerning advocates, 22. 

Uniformity of lawyer's oath and its importance, 9, 1 16, 1 1 7. 

United States Supreme Court, and the decision in the case of ex parte Garland, 
4; view of, on office of attorney, 5. 

Vermont, attorney's oath in, iii, 113; first law in regard to attorneys, HI. 

Virginia province: act against exacting or receiving exorbitant fees, 109; acts 
providing for admission of attorneys, 102, 104; and for the licensing of 
lawyers, 106-109; oaths of admission, 105, 108, 109. — State: acts as to 
"mercenary attorneys," 103, 104; oath of admission, 109, no. 

Washington, attorney's oath in, 115, 116. 

Whitelocke, Lord Commissioner Sir Bulstrode, on character of office and duties 
of serjeants-at-law, 35-37. 



22438 



AA 001 337 325