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-- AndrewMcCormick - 13 Nov 2009 | |
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< | This remains a work in progress - I consider this to be part one of the project and a general overview of my area of interest with a few theories regarding the significance of character and fitness. I plan to revise and add a section of more specific work this semester after spending more time on Hamlin and Chroust, and visiting the NY Historical Society | | | Contents
1. Character and Fitness: a ubiquitous, historically present standard. But a significant one? | | | This genesis of my curiosity about character and fitness standards was an online article discussing whether excessive student debt could be a disqualifying character and fitness criteria. As colossal student debt loads are a recent phenomenon, character and fitness must be an evolving standard. The professional expectations of lawyers and popular views of lawyers character as a class have, I suspect, changed over time. I suspect historical investigation of character and fitness as professional concept will contribute to understanding the legal profession in America. To state my question broadly, I wish to explore how character and fitness of lawyers, as professional and social standards, have shaped the legal profession in America. I will begin with comments on the legal profession, such as de Tocqueville, and then explore documents within the legal profession, such as bar examiners' guides and case law in order to (1) explore the history of character as a professional credential and (2) to search out historic applications of character and fitness standards. | |
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< | A related question is whether character and fitness examination as a portion of bar admission has been used selectively and as a barrier to entry. Realistically, I do not expect to find ‘smoking gun’ evidence of social policy making through character and fitness examination; the mere fact that historical bar exams were orally administered would likely prevent it in early cases. I propose that an interesting question exists of whether bar exam character and fitness standards are a serious hurdle to bar admittance on social grounds, and if they tend to be more or less progressive than widely held norms of the time regarding religion, political affiliation, and potentially homosexuality. I find this question interesting because I can readily imagine reasonable arguments supporting both positions, and scholarship in the field is thin. However, it is likely thin for a reason. | >
> | A related question is whether character and fitness examination as a portion of bar admission has been used selectively and as a barrier to entry. Realistically, I do not expect to find ‘smoking gun’ evidence of social policy making through character and fitness examination; the mere fact that historical bar exams were orally administered would likely prevent it in early cases. I propose that an interesting question exists of whether bar exam character and fitness standards are a serious hurdle to bar admittance on social grounds, and if they tend to be more or less progressive than widely held norms of the time regarding religion, political affiliation, and homosexuality. I find this question interesting because I can readily imagine reasonable arguments supporting both positions, and scholarship in the field is thin. However, it may be thin for a reason. | | |
Character and Fitness: a ubiquitous, historically present standard. But a significant one? | | | Rise of Character as a Professional Credential for Lawyers. | |
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< | The English system suggests informal character selection. In Britain Solicitors received training and eduction by apprenticeship, usually in their teens. One can hardly imagine a solicitor not considering character in selecting a student to work in his office for two years. The Inns of Court, which provided barristers with accreditation, required presence at meals and casual debates over a number of days in the year; again, one can hardly imagine the Inns not basing admission on partially on character, and law was a respected profession. The British program did not fully transplant itself across the Atlantic, and neither did accompanying respect for law as a profession. For more information on the early legal apprentice education in America, and subsequent development of law departments in colleges and eventually law schools, see Hamlin, attached in full below. | >
> | The English system suggests informal character selection. In Britain solicitors received training and eduction by apprenticeship, usually in their teens. One can hardly imagine a solicitor not considering character in selecting a student to work in his office for two years. The Inns of Court, which provided barristers with accreditation, required presence at meals and casual debates over a number of days in the year; again, one can hardly imagine the Inns not basing admission on partially on character, and law was a respected profession. The British program did not fully transplant itself across the Atlantic, and neither did accompanying respect for law as a profession. For more information on the early legal apprentice education in America, and subsequent development of law departments in colleges and eventually law schools, see Hamlin, attached in full below. | | | In early America, lawyers were unwelcome. The practice was viewed as unnecessary and even evil. The Body of Liberties of Massachusetts Bay, 1641, interestingly prohibited legal representatives from taking fees in section 26. Similarly, the 1669 Fundamental Constitutions of the Carolinas' article 70 proclaims practicing law for money as "base and vile". Disdain for lawyers was not limited to legislatures, the public held them in disdain as well. J. McMaster, A History of the People of The United States: From the Revolution to the Civil War (1927) "With the merchants, in the condemnation of the multitude, were joined the lawyers. Indeed, of the two classes, the members of the bar were the more hated and despised. The mere sight of a lawyer as he hurried along the street was enough to call forth an oath or a muttered curse from the louts who hung round the tavern... They were denounced as banditti, as blood-suckers, as pick-pockets, as wind-bags, as smooth-tongued rogues." In "The Rise of the Legal Profession in America" Chroust suggests that American's dislike for all things English and haphazard nature of the unformed law contributed to this antipathy (Chroust I, 5, attached below). However, a more persuasive argument is economic: lawyers were "the lawyer was most unpopular, not to say despised, in the "debtor areas," while in the "creditor areas" he was... at least welcomed" (Chroust II, 14). It is easy to imagine the reputation of lawyers tracks debtors rights, and before tenants' and debtors' rights developed lawyers would be unpopular.. (as an aside, an interesting side project would be investigating early letters and publications targeting lawyers - if anyone's interested, beginning with Benjamin Austin's letters signed "Honestus" might be a starting point. I find it especially interesting the he argued that lawyers would threaten the Republic if allowed to serve in public office. He also wrote entertaining, rambling anti-lawyer poetry. If interested see Chroust I, FN53, Vermont Gazette Feb. 28 1786, et al). |
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