LAWYERING IN AN AGE OF POPULAR POLITICS: PLEA BARGAINING, LEGAL PRACTICE AND THE STRUCTURE OF THE BOSTON BAR, 1800–1860

• Published date: 08 November 2001
• Pages: 207-252
• DOI: https://doi.org/10.1108/S1521-6136(2001)0000003012
• Date: 08 November 2001
• Author: Mary E. Vogel

207

LAWYERING IN AN AGE OF

POPULAR POLITICS: PLEA

BARGAINING, LEGAL PRACTICE AND

THE STRUCTURE OF THE BOSTON

BAR, 1800–1860

Mary E. Vogel

ABSTRACT

Until the eve of the American Revolution, judges in gowns and wigs

dispensed justice in Boston’s higher courts in a style much like that in

England. By the 1830s rising currents of popular politics were transforming

the law craft and its practitioners. Proposals were made to shift from the

common law to enacted statutes, to democratize access to the practice of

law, and to transfer power to regulate admission to the bar to the

legislature. Judicial activism emerged as judges strove to depict their

decisions as reflecting the popular will. When, in 1836, the state legislature

assumed control over bar admissions, the elite members of the Suffolk

County Bar Association dissolved the group not to resume until after the

Civil War.

Lawyers encountered changes in the institutions amidst which they

practiced. Most crucial were numerous changes in the courts. One of the

most important of these was the emergence of plea bargaining. By

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Legal Professions: Work, Structure and Organization, pages 207–252.

Copyright © 2001 by Elsevier Science Ltd.

All rights of reproduction in any form reserved.

ISBN: 0-7623-0800-1

mid-19th century, negotiated guilty pleas were accounting for most

criminal convictions. Though the practice of plea bargaining appeared to

respond to popular demands for simplification, networks linking lawyers,

the city’s elite families and politicians continued to exert significant

influence. The practice arose as part of a project of political stabilization

for a new world of self-rule. In it the courts drew on traditional social

hierarchies both to assess the prospects of a defendant for redemption and

as a means of resocialization. Originally arising in a context of popular

political pressure to simplify legal proceedings and render law more

responsive to the popular will, the earliest plea bargains were often struck

in the lower courts without lawyers at all. Such change provides a window

for observing lawyers, their strategies for resolving cases, and their insti-

tutional world amidst the tumultuous transformation of the Age of Jackson.

INTRODUCTION

Boston lawyers, during the 1830s, were embarked on a struggle, whose roots

hark back to the guilds, of a craft to regulate itself. For the elite members of

the “law craft,” what was new and gave a unique flavor to their quest was the

context of “market revolution” and nascent popular politics. Challenges were

raised to the common law which was depicted as a colonial residue more

familiar to elites than to ordinary people. Judges garbed in black robes and tye

wigs rendered justice in the higher courts in a style similar to that in England

(Jones et al., 1993, p. 119). Lawyers, themselves, and their practices were said

to highlight the “difference between rich and poor” (Jones, 1993, p. 25). The

role of lawyers and the way they practiced changed. One of the most signifi-

cant transformations was the rise of plea bargaining. How lawyers organized

as a group, the institutional setting where they worked and their strategies for

resolving cases all underwent metamorphosis.

Formation of the Bar: Beginnings of A Modern “Guild”

The tradition, among Boston lawyers, of corporate fraternity loosely modeled

on the guilds is long. One finds John Adams speaking in his diaries of journeying

with judges and other lawyers when he argued cases on the Superior Court’s

circuit. Many were the nights that the road-weary travelers slept at the same

inn and dined together in the evening (Adams; cited in Jones et al., 1993,

p. 19). Often the talk turned to law or politics.

Although comradely association was well established, self-regulation as a

corporate body proved far harder to come by. Fee structures, for example, were

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208 MARY E. VOGEL

originally established by statute. We know that Adams’ practice involved him

in hundreds of cases each year. The hectic pace of his work was due, at least

partly, to the limited fee structures of the day which allowed a lawyer to charge

six shillings for a case tried in Inferior Court and twelve at the Superior Court

(Jones et al., 1993, p. 19). Adams grumbled, with the fees much in mind, “Let

me remember to keep to my Chamber, not run abroad . . . Law and not Poetry

is to be the Business of my life.” (Adams; cited in Jones et al., 1993, p. 19).

At its first meeting in 1763, the Suffolk County bar drafted a proposal to

regulate who could be admitted to practice law before the courts. They sought

to exclude “irregular practitioners,” who came to be known as “pettifoggers,” and

to reserve appearance in the Inferior Court for “sworn attorneys” (Jones et al.,

1993, p. 19). When James Otis openly opposed the exclusivity of their plan, the

court declined to adopt it. Two years later, the bar specified the qualifications for

advancement to the status of barrister with members hoping to control both the

quality and the numbers of competitors practicing law (Jones, 1993, p. 20). Adams

himself lamented that “Every county . . . swarms with Pupils and students and

young Practitioners of Law” (Adams; cited in Jones et al., 1993, p. 20). In 1770,

at the Bunch of Grapes Tavern, the Suffolk County Bar Association was

established when twelve barristers and attorneys formally voted it into existence.

In this new, more formal guise, the pre-Revolutionary bar sought to set in

place “uniform standards,” regulate “competition” and reform and simplify trial

procedures (Jones et al., 1993, p. 21).

Lawyers and the War for Independence: Revolutionary

“Clamours” to Royalist Sympathies

As storm clouds of Revolution gathered, lawyers in Boston found themselves

central to the many legal aspects of dissent. Some defended merchants who

resisted tariffs imposed by customs officers on imports such as tea while others

challenged change in the term of judicial appointments from “good behavior”

to “the pleasure of the governor” (Jones et al., 1993, p. 21). As John Reid has

noted, the colonists, as they defied the Crown, demonstrated powerfully their

rootedness in the “rule of law” as a guide for grappling with adversity. General

Thomas Gage, commander of the British forces in that War, laid much blame

for colonial dissent at the doorstep of lawyers saying, “The Lawyers are the

Source from whence the Clamours have flowed” (Jones et al., 1993, p. 21) Yet

when colonists closed the Boston courts in 1774 to prevent the enforcement of

unpopular laws, almost a third of the city’s lawyers remained loyal to the Crown

(Jones et al., 1993, p. 21). An act of the Massachusetts legislature in 1778

prohibited some, who had fled, from re-entering the state.

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