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Record-Keeping and Other Troublemaking: Thomas Lechford and Law Reform in Colonial Massachusetts

Published online by Cambridge University Press:  18 August 2010

Angela Fernandez
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Extract

Historians have long discussed the different ways in which the first professional lawyer to practice in Massachusetts Bay Colony, Thomas Lechford, was at odds with colony authorities in his three-year stay there—from June 27, 1638 to August 3, 1641. Some accounts have focused on his religious views, since Lechford disagreed with the strict forms of church membership prescribed by the colony's religion, Congregationalism. When he returned to England, Lechford wrote a book called Plain Dealing in which he argued against this form of religious organization, claiming that he had received enough first-hand experience to recommend a return to the Church of England. This book has been an important source of information on religious and political arrangements in colonial Massachusetts, and so for many, the picture of Lechford as religious dissenter is familiar. Another important picture of Lechford, especially familiar to historians of the American legal profession, is Lechford the impecunious lawyer disbarred for the unethical practice of law. Lechford himself had written, “I am…forced to get my living by writing petty things, which scarce finds me bread.” He had been disbarred for “embracery,” pleading to a jury out of court, and it was assumed that this combination of circumstances forced him to return to England. James Savage wrote under his biographical entry for Lechford: “left here, aft. vain attempt to earn bread.” Other nineteenth-century scholars of colonial Massachusetts said much the same thing. William Whitmore, in an introduction to a collection of Massachusetts colonial laws, wrote that Lechford “was finally starved into returning to England.”

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Articles
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Law and History Review , Volume 23 , Issue 2 , Summer 2005 , pp. 235 - 277
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Copyright © the Board of Trustees of the University of Illinois 2005

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References

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17. See Hughes Dayton, “Was There a Calvinist Type of Patriarchy?” and Women before the Bar. See alsoMarcus, Gail Sussman, “‘Due Execution of the Generall Rules of Righteousnesse’: Criminal Procedure in New Haven Town and Colony, 1638–1658,” in Saints and Revolutionaries: Essays on Early American History, ed. Hall, David D., Murrin, John M., and Tate, Thad W. (New York: W.W. Norton, 1984), 99–137Google Scholar.

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20. Thomas Lechford to Edmond Browne, 10 December 1638, Notebook, 45.

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43. It restricted itself to appellate jurisdiction in 1642. Mass. Records, 2:16. After which time, it would no longer “function as a lowly court of first instance general jurisdiction.”Black, , The Judicial Power of the General Court, 146Google Scholar.

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49. On the many different meanings of “appeal” and the “culture of appeal” in England and New England in the seventeenth century, see Bilder, “Salamanders and Sons of God.”

50. Notebook, 77, 247–48, 412–13; 320–21.

51. When Bellingham was an assistant, he acted as a witness for various documents Lech-ford drafted, one of which was a sale of a house and lands for £10 to be paid six months later “at the house of Richard Bellingham Esqr in Boston.” Ibid., 58.

52. Records of the Court of Assistants, 2:87.

53. “A Paper of Certain Propositions to the general Cort made upon request 8. 4. 1639,” Notebook, 87–88.

54. “Certaine proposicons to the generall Cort, 11. 4. 1639,” Notebook, 89. The position was subsequently created in 1644 and assigned to William Aspinwall. Mass. Records, 2:86. On Aspinwall, seeAnderson, Robert Charles, The Great Migration Begins, vol. 1, Immigrants to New England, 1620–1633 (Boston: New England Historic Genealogical Society, 1995), 55–60Google Scholar.

55. Notebook, 88; Plain Dealing, 63, 67. See, e.g., Mass. Records, 1:88 (Phillip Ratcliffe ordered to be whipped, his ears cut off, fined, and banished).

56. Records of the Court of Assistants, 2:21, 31, 33, 27; 26, 63, 41, 62.

57. John Noble's edition of the Records of the Court of Assistants used a copy made by Lechford for the purpose of comparing it with the original records. Noble referred to Lechford's copy as “the L. copy.” Ibid., parenthetical note, 2:1.

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73. Plain Dealing, 67–68.

74. “[N]o mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him, nor any way indammaged, under coulor of law or Countenance of Authoritie, unlesse it be by vertue or equitie of some expresse law of the Country waranting the same, established by a generall Court and sufficiently published, or in case of the defect of a law in any parteculer case by the word of god.” Body of Liberties, 33.

75. Mass. Records, 1:275.

76. Plain Dealing, 86.

77. Mass. Records, 1:276.

78. Records of the Court of Assistants, parenthetical note, 2:1; Plain Dealing, 67.

79. “Records,” Laws and Liberties, 46.

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87. Plain Dealing, 73–74.

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102. Child Petition, 219–20; “To the Reader” in Plain Dealing, 7.

103. Plain Dealing, 139, 89.

104. This was an important part of the horror experienced by the English settlers when members of their communities were captured by Indians and either kept among them or brought to French Canada and converted to Catholicism. SeeDemos, John, The Unredeemed Captive: A Family Story from Early America (New York: Albert A. Knopf, 1994)Google Scholar; Lepore, Jill, The Name of War: King Philip's War and the Origins of American Identity (New York: Alfred A. Knopf, 1998)Google Scholar.

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109. Axtell, , The Invasion Within, 218–19; 248, 273, 276–79, 286.Google Scholar

110. Plain Dealing, 122; Thomas Lechford to anonymous friend, 28 July 1640, Plain Dealing, 147.

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115. Lechford wrote, “I have heard one of their wisest speak of an intention to repeale the same law,” namely, the “one I excepted against” in “Of the Church her Liberties.” Plain Dealing, 65–66. Since this text first appeared in 1642, he probably was referring to the repeal of the 1636 law and the intention to replace it with Liberty 95§1.

116. Thomas Lechford to anonymous friend, 19 December 1640, Plain Dealing, 156; Thomas Lechford to anonymous friend, 13 October 1640, Plain Dealing, 150. See alsoLechford, Thomas to anonymous friend, 28 July 1640, Plain Dealing, 144Google Scholar(“I am kept from the Sacrament, and all place of preferment in the Common-wealth”).

117. Wilfrid Prest, “The English Bar, 1550–1700,” in Lawyers in Early Modern Europe and America, ed. Wilfrid Prest (New York: Holmes & Meier, 1981), 65–85, 69–70.

118. Love, , Scribal Publication, 200.Google ScholarD'Ewes probably acquired his penchant for copying and note keeping while a university student in 1618 at St. John's College, Cambridge, under his tutor, Richard Holdsworth (or Oldsworth), whose system of study used a method of taking succinct notes in various “paper books.”Fletcher, Harris Francis, The Intellectual Development of John Milton, vol. 2, The Cambridge University Period, 1625–32 (Urbana: University of Illinois Press, 1961), 84Google Scholar(D'Ewes became one of Holdsworth's pupils in 1618). See also Appendix II, “Holdsworth's ‘Directions for a Student in the Universitie,'” 623–70, 638–52 (on commonplacing).

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125. Mass. Records, 2:9; “Children,” Laws and Liberties, 11.

126. Bilder, , “Early American Legal Literates and Transatlantic Legal Culture,” 98–99.Google Scholar

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128. Bilder, , “Early American Legal Literates and Transatlantic Legal Culture,” 100, 99 n. 256.Google Scholar

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130. The long title of a 1594 edition of West's Symboleography continued “which may be termed the Art, Description, or Image of Instruments, Of the paterne of Presidents. Or the Notaire or Scrivener.” Many editions appeared between 1590 and 1647. Countrey Justice also appeared in many editions.Maxwell, W. Harold and Maxwell, Leslie F., A Legal Bibliography of the British Commonwealth of Nations, vol. 1, English Law to 1800, 2d ed. (London: Sweet & Maxwell, 1955), 487, 227.Google ScholarFor early American examples of form books and practice manuals, seeCohen, Morris L., Bibliography of Early American Law (Buffalo, N.Y.: William S. Hein, 1998), 3:3–180Google Scholar.

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137. Barnes, “Thomas Lechford and the Earliest Lawyering in Massachusetts,” 23 (Lech-ford demonstrated “an improvisational command of real property usually associated with a barrister-conveyancer rather than with a mere scrivener”).

138. Ibid., 29, 25.

139. William Aspinwall was granted the role of “clerk of the writts” for Boston in 1643, and both the posts of colony recorder and “publique notary,” when the office was created in 1644. Mass. Records, 2:45, 2:84, 2:86.

140. Barnes, , “Thomas Lechford and the Earliest Lawyering in Massachusetts,” 11.Google Scholar

141. See Prest, Wilfrid R., The Rise of the Barristers: A Social History of the English Bar, 1590–1640 (Oxford: Clarendon Press, 1986).Google Scholar

142. Brooks, , Pettyfoggers and Vipers of the Commonwealth, 12.Google Scholar

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144. Child Petition, 218, 217.

145. Plain Dealing, 59.

146. Morgan, , The Puritan Family, 170.Google Scholar

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151. Bilder, , “Salamanders and Sons of God,” 69.Google Scholar

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153. See Murrin, John M., “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts,” in Colonial America: Essays in Politics and Social Development, ed. Katz, Stanley N. and Murrin, John M., 3d ed. (New York: Alfred A. Knopf, 1983), 540–72Google Scholar; Newmyer, R. Kent, “Harvard Law School, New England Legal Culture, and the Antebellum Origins of American Jurisprudence,” in The Constitution and American Life, ed. Thelen, David (Ithaca: Cornell University Press, 1988), 154–75Google Scholar.