IN the Augustan rooms of this august society, my use of the ugly term “lawyering” must appear as a breach of dulia if not of latria. The genii loci of the Colonial Society of Massachusetts—those distinguished nineteenth-century founders, masters of elegant prose and measured elegiac rhetoric—wince to hear it, and perhaps find only cold comfort in noticing that it falls from the lips of one who can be called a frontiersman! My apologies to them, and to you, but I found it at best anomalous, at worst misleading, to use a more acceptable and less grating term such as “earliest legal practice.” Those few whom we know or suspect were engaged in providing legal services for a fee in the first two decades of the Bay Colony did not fit the contemporary understanding of a “practicer” of the law: that is, they were neither barristers nor attorneys-at-law, either in Old England or New. The first of these, and the most learned, interesting, and important of them, was Thomas Lechford. He only once arrogated to himself a more impressive title than “scriptoris hujus” (his scribe) of the client. William Aspinwall described himself simply as “Notarie & Tabellion pub [lie]”; and such shadowy figures as Robert Saltonstall, Edward Colcord, George Keyser, and Robert Lord were apparently attorneys-in-fact, not in-law, though they were probably fee’d.143 Nevertheless, if by contemporary canons there were no “learned practicers” in early Massachusetts, there were men engaged in lawyering. Though not formally “learned,” they were not innocent of learning; though not technically “practicers,” their practices were far from negligible. These men filled a real need for legal services in the routine conduct of legal business and litigation in a colonial society which had as high a regard for law, as perfectly developed a penchant for litigation, and almost as sophisticated, albeit less complicated and more condensed, a judicial arena as did Old England. They deserve a large place in our annals, for they founded the legal profession in Massachusetts, and from their small beginnings grew the company of those later and better known practicers who will engage our attention during the remainder of this conference.
The origins of the legal profession in Massachusetts are bedevilled by the conventional wisdom that Puritans had an inbred animus toward all lawyers. Recently a sizable literature on the demand for law reform in Old England during the rule of the Saints has lent emphasis, and perhaps undue credence, to this proposition.144 Interestingly, recent legal-historical scholarship on Massachusetts has tended to stress less animus against lawyers for the slowness of a recognized legal profession to evolve in the colony than the fact that the colony’s courts were more analogous to the local customary courts of England, notably the leet, than to the central courts at Westminster. The latest commentator, David Grayson Allen, argues that
Most men in England in the seventeenth century still lived in rural areas away from the influence of or need for the national court system. They seldom required the services of trained lawyers, and they were not likely to carry disputes beyond the manor or borough, or hundred or county courts. Life in Massachusetts was little different.145
The vague “most men” is misleading insofar as this is a description of the non-recourse of rural Englishmen to Westminster. In fact, a great many rural Englishmen of cognate status to their cousins in Massachusetts were involved in civil disputes in Westminster and all too familiar with the activities of “trained lawyers,” barristers, and attorneys. Moreover, the English origins of a great many of the Bay immigrants were not that impeccably rural: about ten percent came from London and Middlesex, and a large proportion of the rest came from boroughs, especially in East Anglia and the Home Counties, with very sophisticated borough jurisdictions served by numerous local attorneys. I have argued elsewhere that the Massachusetts General Court cum Court of Assistants asserted and exercised as broad a jurisdiction and as deep a cognizance of matters as all the courts of England combined, including Chancery and Star Chamber.146 Whatever longing there might have been for arcadian simplicity in the doing of law, realities dictated that within two decades of the Bay Colony’s founding a legal profession would emerge. That does not appear to have surprised anyone save the magistrates, who resisted the development; neither does the lawyer appear to have been a novelty in the colonists’ experience.
Yet the emergence of a legal profession was relatively slow in coming. An explanation for this slowness based upon rusticity and a lack of sophistication on the part of the colonists is hardly more satisfying than the older notion of “Puritan animus.” In any event, there is merit in putting that animus in proper perspective. The most commonly cited evidence of the animus is clause 26 of Nathaniel Ward’s “Body of Liberties” of 1641:
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. This shall not exempt the partie him selfe from Answering such Questions in person as the Court shall thinke meete to demand of him.147 Ward was one of only three men in the early years of the Colony who had been called to the English bar.148 He was hardly a much-practiced barrister; within a few years of his call by Lincoln’s Inn in 1615., he gave up the long robe for the severe gown of a Puritan parson. By 1641 he was far from Lincoln’s Inn, his spiritual and intellectual as well as physical migration having taken him to a chaplaincy to English traders in a Hanse city, to the rectory of Stondon Massey in Essex, to deprivation by Archbishop Laud, and to the ministry of the gathered church in Ipswich, Massachusetts. In 1638 he gave up even the latter, and John Winthrop noted opprobriously that he was “now no minister by the received determination of our churches.”149 We do not know whether Ward’s “Body of Liberties” had the force of law. Certainly clause 26 appears to have obtained in practice. However, though the Lawes and Libertyes of 1648 picked up all but nine of the “Body’s” ninety-six substantive clauses, clause 26 was one of those omitted.150 Whatever strength the “Puritan animus” had once possessed, by 1648 it had waned considerably.
We must also distinguish from “Body of Liberties” clause 26 that round condemnation by a former Attorney of Wards and Liveries of the “multitude of Atturnies . . . [who] take out processe against their neighbors upon very light occasions. . . .”151 John Winthrop referred to the attorneys of Common Pleas, King’s Bench, the Guildhall of London, and other lesser courts. Those who stuck to their last in the court upon whose rolls their names were entered and of which they were considered “clerks,” those who did not “solicit” actions in other courts as “common solicitors of causes,” would have escaped Winthrop’s strictures. Certainly, those genuine officers of English-bill courts, such as the three attorneys of Wards and Liveries of whom he had once been one, who did not solicit causes but merely handled the paperwork, appearances, and motions of the litigants who retained them in the particular court, were not the butt of Winthrop’s scorn.152 There was no hypocrisy in Winthrop’s condemnation, only snobbery. More characteristic of the Puritan genre was the Reverend John Cotton’s blast out of Zion at those “unconscionable Advocates” bolstering a “bad case by quirks of wit, and tricks and quillets of Law . . . ,” who “use their tongues as weapons of unrighteousnesse . . . to plead in corrupt Causes.”153 If there were indeed a prejudice against lawyers in the Bay Colony, it appears to have been directed primarily at those thought responsible for barratry—the stirring up of unnecessary and unwarrantable suits in law—and at advocates whose forensic skills were looked upon with deep suspicion as instruments of deceit and obfuscation.
The explanation for the slowness of a legal profession to emerge in the Bay probably had more to do with the failure of a City Upon a Hill in a wilderness to attract lawyers than anything else. It demanded unusual devotion to the enterprise of the Godly Commonwealth to persuade even a moderately successful barrister or attorney to give up what was still in the 1630’s the most lucrative vocation providing the greatest upward social mobility open to talent in England. Very few men—even the great many who can be identified as basically well-disposed to the cause, both from religious sentiment and political predilection—were prepared to give up so much for so little. Those who did found ready acceptance at the top level of colonial society. They became the accepted leaders—most of them were among the founders—of the Colony, as befitted their social status in England as lawyers. When the quondam recorder of Boston, Lincolnshire, Richard Bellingham, and his talents were needed on the bench as an Assistant, he was more usefully employed there than as advocate at its bar.
Something else was at work to discourage the emergence of a legal profession. When legal talent did not pour into the Colony voluntarily, the founders felt no compulsion to recruit it. The magistrates were understandably reluctant to nurture a profession which would at least make their lives more complicated and could challenge their control of the law and legal institutions upon which ultimately depended their leadership of the Godly enterprise. In common with the mother country’s judges, upon whom they modeled their activities, the magistrates took seriously Chief Justice Coke’s admonition that the bench look out for the interests of one accused of crime precisely because at common law an accused felon had no right to counsel at his trial.154 In those civil suits and the administrative matters in which the common law allowed counsel to the parties, the magistrates sought to preserve the law in as rudimentary a state as possible, in order to obviate the need for learned assistance. The professional lawyer posed a threat to judicial control; even the most deferential and well-disposed advocate could not be relied upon to be taken into court! Magistrates such as Winthrop, Dudley, Downing, Pynchon, Humphrey (a barrister), Richard Saltonstall, and Bellingham had enough legal learning and judicial experience to appreciate the threat. What they could not do was steadfastly exclude lawyers from the courts. No matter how annoying the profession might be, it was an integral part of the legal system of Old England and could not forever be kept out of New.
4. John Winthrop (1587/88–1649), Governor, Chief Magistrate, Member of the Court of Assistants. Member, Gray’s Inn and Inner Temple. Admitted, Court of Wards and Liveries. Courtesy, Massachusetts Historical Society, from a copy of a portrait painted in England before 1630.
Just as lawyers could not be excluded from the courts, neither could the magistrates long keep the laws a closed preserve, maintaining indefinitely their monopoly of knowledge of the law. Within five years of the Bay’s settlement, the freemen began to agitate for a compendium of the Colony’s laws that would limit the discretion of the magistrates by making available to everyone knowledge of the positive laws by which order was preserved, rights and liberties assured, and good governance effected. This agitation bore its first fruit in the collection of fundamental laws drawn up by Nathaniel Ward in 1641, the “Body of Liberties.” The “Body of Liberties” was almost too fundamental: it did not limit sufficiently the magistrates’ discretion because it was not a comprehensive collection of the criminal and public law of the Colony, which was growing rapidly by the legislation of the General Court. With the increasing prominence in the 1640’s of the non-magistrate town Deputies as members of successive committees “for the laws,” the effectual steps were taken that resulted in the printing in 1648 of six-hundred copies of The Book of the General Lawes and Liberties Concerning the Inhabitants of the Massachusets.155 While most, though, as we noted above, significantly not all, of the “Liberties” of 1641 found their way into the 1648 compendium, the bulk of it was legislation—the “General Lawes” rather than “Libertyes”—which constituted the largest portion of the positive law of the Colony. For three shillings anyone could have the entire public law, much of the criminal law, and the most important and uniquely Massachusetts part of the civil law in his hands.
The conversion of the magistrates to the notion that the laws should be available to all was a long and painful process. The first, and ultimately the most effective, convert was Richard Bellingham. He had come early to a realization that there was no way in which free-born Englishmen of the mid-seventeenth century could be prevented from knowing the laws by which they were governed, indeed, by which they governed themselves through the legislation of the General Court in its non-magisterial element, the Deputies. Bellingham was also enough of a realist, and quintessentially the counsellor-at-law, to recognize that people who placed such a premium on the enjoyment of their rights and liberties could not be denied professional assistance in litigating them. Clearly, the agitation that produced the printed laws also stimulated the development of a legal profession in Massachusetts. The uncomplicated law in the minds and from the mouths of the magistrates, when set down in cold print, had become complicated and voluminous. That law demanded professional involvement in its implementation. Ironically, while the printed laws might have made of every man his own lawyer, instead they drove every man to seek professional help. That the earliest clear emergence of a legal profession in the Colony dates from about 1650 indicates a connection with the circumstances surrounding and an impact on the law following the publication of the Lawes and Libertyes in 1648 that was more than coincidental.
The career of the first man known to undertake “lawyering” for fee in Massachusetts substantiates the observations set out above as to the reasons for the slowness of the legal profession to emerge in the Colony. Thomas Lechford of London was neither barrister nor attorney, neither esquire nor gentleman. He was in fact a “common solicitor of causes,” one who would have certainly been included within John Winthrop’s strictures. He came to Boston in 1638, not from religious sentiment, or political predilection, but rather from necessity. He had fallen foul of Archbishop Laud, the most powerful man in England, had been committed for contempt of court, and had decided that any further promotion in the legal profession was closed to him in consequence. Not only did he lack the learning and the social station that would have made him a magistrate in New England 3 he also lacked the visible piety of a Visible Saint that would have brought membership in the gathered church in Boston, and hence have made him free of the Colony and eligible for public office befitting his talents. In his three years in Boston, from this arrival on 27 June 1638 until his departure for England on 3 August 1641, he exercised his calling as a lawyer with continuous assiduity and considerable success, despite contretemps, growing isolation from the community, and some experience of that “Puritan animus,” which, if it did not make life impossible for him, surely made it difficult.
Of his family background, nothing is known. J. Hammond Trumbull speculated in the introduction to the 1885 edition of the Lechford’s Note-Book that Lechford was a descendant of Sir Richard Lechford of Shelwood, Surrey (obiit 1611) and therefore closely related to Sir Richard’s grandson and heir, a knight of the same name and Gentleman Pensioner, who was a notorious Roman Catholic at the court of Charles I until put from his place in 1634 for attempting to send two of his daughters to nunneries in Europe.156 This is unprovable. That Thomas Lechford first set down—and then struck out—the self-ascription “late of Clements Inn in the county of Middlesex Gent” in a petition to the General Court in 1639, wherein he was attempting to clear himself of a charge of jury-embracery, proves only that he had been a member of that Inn of Chancery before coming to Massachusetts.157 If descended from a knight whose arms had been confirmed in 1605 by Garter,158 he would have been a gentleman by right; but as a member of one of the inferior Inns he might have arrogated to himself the status of “gent,” which by common acceptance then would have been warranted only by one who was also an attorney-at-law. In fact, while discretion may have dictated deleting the self-ascription, the General Court never accorded Lechford gentle status by the honorable form of address, “Mr.”
Equally speculative was Trumbull’s conclusion from two ambiguous allusions—one by Lechford and the other by his New England nemesis, the Reverend John Cotton—that Lechford had been driven from England for assisting William Prynne’s cause in the Star Chamber in 1637, when Prynne, Dr. John Bastwick, and the Reverend Henry Burton were prosecuted by the Attorney-General for seditious libel. Lechford wrote in 1642:
I suffered imprisonment, and a kind of banishment out of this good Land [England], for some acts construed to oppose, as tending to subvert Episcopacie, and the setled Ecclesiasticall government of England.159
Cotton, in 1648, stated that Lechford had left England because he had “witnessed” against the bishops “in soliciting the cause of Mr. Prynne. . . .”160 It is possible that Lechford was involved in that Puritan cause célèbre, but there is absolutely no trace of Lechford to be found in the masses of documentation on the case.161 Rather, there is direct evidence, apparently unknown to Trumbull, that provides a better explanation of these passages, albeit one not quite so emphatically redounding to Lechford’s reputation as a martyr to Laudian persecution.
One charge in the impeachment of William Laud, Archbishop of Canterbury, before the Lords in March 1644 was that he had interfered with the course of justice in suits brought by Ferdinando Adams, a churchwarden of St. Mary-at-Tower, Ipswich, Suffolk, against Henry Dade, the metropolitan’s commissary and surrogate of Laud’s vicar-general. St. Mary’s was a hot-bed of Puritanism, and in 1635 Dade held his ecclesiastical court in the church in furtherance of Laud’s injunctions to remove seats in the east end of the chancel and to put in their place a railed-in communion table on a north-south axis. When Dade took his commissarial seat in the church, he discovered that Adams had scrawled in large letters over it a somewhat less than indifferent passage from Scripture, Matthew 20.13, ‘“My house shall be called the house of prayer; but ye have made it a den of thieves.’”162 Adams refused both to remove the offending passage and to take down the seats and replace them with the table, and Dade excommunicated him.163 Adams retaliated by suing Dade in King’s Bench in an action on the case, and also in Exchequer.
Ferdinando Adams’s counsel was none other than William Prynne. Adams’s solicitor was Thomas Lechford. Cotton’s recalling, more than a decade later, that Lechford had solicited “the cause of Mr. Prynne” might have been a human slip for “the cause for Mr. Prynne,” as Adams’s solicitor in the cause in conjunction with Prynne. Lechford certainly did suffer “imprisonment”: he was committed by Justice Jones of the King’s Bench until Adams dropped his case in that court. At Laud’s trial, Prynne testified that “‘he [Prynne] advised Adams to an action of the case; that he blamed Lechford for deserting the suit; and that he advised him [Adams] to go to Mr. Attorney.’”164 Attorney-General Bankes’s principal clerk, John Cockshutt, took up the case on relation and had Dade and other officials served with process to appear in Star Chamber. Laud then expostulated with Bankes for “lending his name in such a scandalous cause,” and Bankes withdrew before putting in an information.165 Adams was left to prosecute on his own behalf, and in Easter Term 1636 his bill against Dade et altos was, as the course demanded upon a demurrer or plea-in-bar, referred to a judge, George Croke, JKB.166 Croke’s report obviously went against Adams. In Hilary term 1637, Star Chamber ordered: “Let the shoemaker [Adams] appeare heere in person in open court before the defendants be compelled to answeare” his bill, because the actions by Adams in King’s Bench and Exchequer had been found “unfitt,” the Attorney-General had refused to put in an information, Adams had “Opposed the Bishops coming into church” and was excommunicated.167 At the hearing for the order, Laud, as Privy Councillor, made a slighting reference to Adams’s “conscience” not admitting him to take the oath to give evidence in the matter. At this point, Adams fled to the Bay Colony, where he was admitted free in May 1640, having settled at Dedham.168
Perhaps Adams’s flight moved Lechford to follow suit. Lechford stated that he was “thrown out of my station in England.”169 This leads to an inference that his “kind of banishment out of this good Land” was not a matter of being driven into exile to escape retribution, as much as it was a matter of finding employment. He claimed to have been offered a place in the court of Prince George I Rakoczy of Transylvania, and that “the Lords of Providence offered me place of preferment with them which I will not name.”170 In the event he did not avail himself of either of these exotic opportunities, if opportunities they were, for he referred to them while patently trying to impress the Reverend Hugh Peters in hopes of obtaining Peters’s help in getting admitted to the church in Boston.
Lechford’s movements between the conclusion of the Adams Case in March 1637 and his arrival in Boston at the end of June 1638 are obscure. He left England sometime between November 1637 and January 1638.171 Allowing for a ten-week westward passage, a period as long as November 1637 to mid-April 1638 is unaccounted for between his leaving Old England and embarking for New. In July 1640 he wrote to an English friend that he looked to the prospect of leaving the Bay and being so
happy as to arrive in Ireland, there at leaste to follow my old profession, and where I have hope of some friendship, since I was last there with my Lord Deputy Wentworth now lord lieutenant-general.172
It was possible that Lechford’s Irish sojourn pre-dated his Adams’s Case troubles, but it was more likely that he tried to make a start in Dublin, with no success, before leaving for New England. A cursory search of Wentworth’s letter-books for the 1630’s has failed to turn up any reference to Lechford.173
It would be well now to consider what a “solicitor” in early seventeenth-century England did. There can be no doubt that Lechford was a solicitor in name and function both before and after his Massachusetts sojourn. His involvement in Adams’s Case makes that clear; Cotton’s reference supports it; the Boston court of Assistants long after he left the Bay referred to him as “an ordinary solicitor in England.”174 In 1639 Lechford described himself as “late of Clements Inn in the county of Middlesex Gent,” and in 1642 as a gentleman of that same society.175
Clement’s Inn was one of nine Inns of Chancery dependent upon and controlled by the four Inns of Court, in the case of Clement’s, by the Inner Temple. The Inns of Court had gained a monopoly of call to the bar; only those who had completed the exercises of one of those four Inns had right of audience in the courts as “barristers,”176 (hence the name). Indeed, in Common Pleas only those barristers who had received letters patent calling them to the order of Serjeants-at-Law (upon which they removed to Serjeants’ Inn, which they shared with the common-law court judges, former Serjeants) had the right of audience. The Inns of Chancery, so called because the writ office for beginning common-law actions was in Chancery, were associated with the writ and clerical side of the law. Originally, a man bent on a legal career would pass some time at an Inn of Chancery learning the writ system before going on to an Inn of Court to become a barrister. By the beginning of the seventeenth century the Inns of Court seldom admitted aspirants from the inferior Inns. The Inns of Chancery became almost entirely working chambers for attorneys, court-clerks, and solicitors.
An attorney, though he could not plead or advocate at the bar of a court, was recognized by the court as being empowered to act for a principal by making appearance, directing the issue of process, and authorizing entries on the court’s record. He was an officer of the court and was often referred to as a “clerk of court.” The numbers of attorneys of Common Pleas and King’s Bench were such that by the early seventeenth century neither court was certain exactly how many such “officers” it had.177 These attorneys were recognized in all other common-law courts: Exchequer, the London courts, assizes, quarter sessions, and the like.
The English-bill courts—Chancery, Star Chamber, Requests, and Duchy of Lancaster—limited the number of attorneys to six or less, and they were truly officers of the court. This stringency stimulated the growth of a class of practicers called solicitors178 who were neither barristers nor attorneys and who did not yet enjoy the professional status of either. The office of solicitor was not a new phenomenon: it was at least as old as the fifteenth century. By the early seventeenth century the solicitor had become an indispensable agent in the conduct of litigation in the English-bill courts and a useful one in actions in common-law courts. Agent is the proper term, for he provided the nexus between client and counsel and counsel and attorney in the course of an action. Though the client “instructed” counsel directly, and counsel dealt with the attorney, the solicitor served as the messenger tying all together. The solicitor was in the most intimate contact with the client, at his beck and call in a way that neither barrister nor attorney was. Certainly a number of attorneys served as solicitors, especially in English-bill litigation, young men in the Inns of Court on their way to the bar “solicited” for principals, and some solicitors were really estate-agents and innocent of much, if any, legal learning.179
Thomas Lechford was none of these. His name will not be found on warrants of attorney in the records of the Common Pleas or King’s Bench. He was never admitted to one of the four Inns of Court. He probably was not anyone’s estate-agent, though this is not susceptible of proof. Indeed, we know nothing certain about Lechford’s practice from Clement’s Inn, beyond his misfortune in being the plaintiff’s solicitor in Adams v. Dade.
There is one piece of evidence that will support some inferences about Lech ford’s English practice and training. At the end of Lechford’s scrivener’s book from his Massachusetts sojourn, preserved in the American Antiquarian Society in Worcester, Massachusetts, are forty-six pages in a neat hand that was not Lechford’s180 containing extracts from sixty-five legal instruments. Eight of these instruments were conditions for obligations, releases, a warrant of attorney, a letter of attorney, and a defeasance upon judgment. Fifty-seven were extracts from written pleadings, some ex parte the plaintiff, the bulk special pleadings in defence. All these pleadings are in Latin, a clear sign that they were extracted from plea rolls of common-law courts. All were in civil suits, principally debt, trespass, and action on the case—the latter almost all assumpsit. Insofar as it is possible to determine jurisdiction and time, the suits were in the London Guildhall and date from the early 1630’s. That is, they were in the court of the Lord Mayor of London or the Sheriffs’ Court of London. The dominance of assumpsit helps confirm the jurisdiction, if we note the point made by a contemporary lawyer’s handbook as to the popularity of assumpsit in the London courts.181 Moreover, since written pleadings enrolled of record in a court usually gave the name of the attorney making the enrollment, we are furnished with an important clue. Almost sixty per cent of the pleadings were entered by one John Hatt.182 Hatt was a well-known Guildhall attorney, and one who was to become notorious as a leading London radical in the turmoil surrounding the breakdown of Charles I’s regime and the onset of revolution.183
Our clue—it is no more than that—suggests that Lechford had, as a solicitor, worked closely with Hatt, and conceivably with a couple of the other attorneys whose names we have from these pleadings. Because the status of a solicitor was professionally so inchoate, it was possible for an attorney and a solicitor to work together so closely that the solicitor was in fact less a free agent than a subordinate to the attorney, assisting the latter in his practice and perhaps undertaking clerical work, copying and the like. In Lechford’s case, if he did have such a relationship with an attorney, he might well have done a considerable amount of drafting of instruments also. In his submission to the Boston quarter court in December 1640 for having meddled in religious controversies, Lechford confessed:
I am no pleader by nature. Oratory I have little, and if I had never so expert a faculty that way I should not now use it to make any full defence in my matters; and as for that other part of pleading which consisteth in chirography wherein I had some little skill I do not desire neither to use any of that.184
In short, Lechford was admittedly skilled in written pleadings, precisely the kind of pleading that was by his time almost entirely the province of an attorney, unless the matter was so unusual or so complicated as to demand drafting by a barrister. Such skill in written pleadings was acquired either in a clerical capacity in a court—and there is no evidence that Lechford had ever so served—or in an attorney’s chambers. This would support the supposition that Lechford had had a clerical relationship with an attorney, probably Hatt.
Because Lechford supported himself primarily as a scrivener during his three years in the Bay Colony, the possibility that he had been a scrivener by métier before departure from England cannot be entirely ruled out. Some scriveners did in fact also act as “common solicitors.” Again, the inchoate professional status of the solicitor permitted such activity. Moreover, in the Colony Lechford aspired to the office of notary, and scrivener was synonymous with notary public. Lechford was not, though, a member of the Company of Scriveners of London.185 Though not all scriveners in England were, those in and around London found it difficult to prosper or even to practice if they were not. Perhaps the best evidence to indicate that Lechford was not a scrivener is to be found in his manuscript scrivener’s book from his Massachusetts practice. He wrote a clear secretarial hand, but one lacking the formality of a scrivener’s hand. The leaf separating Lechford’s entries from the extracts from legal instruments contains some practice lines in a law-hand—one the royal style of Charles I as it would have been on a writ to the sheriff of Lincolnshire—and the law-hand signature of “William Laver.”186 Who the latter was is unknown; anyway, there is no reason to suppose that any of this part of the book was written by Lechford, though its provenance as being Lechford’s is likely enough. We can accept the fact that Lechford was skilled in “chirography”—not to be taken too narrowly to mean the writing of an indenture counterparted, but rather, the drafting of a formal document—without expecting him to have the manual talent for formal engrossing which the scrivener’s craft demanded.
II. Lechford in Massachusetts
In the Massachusetts Bay Colony Lechford could practice as a scrivener despite a want of engrossing dexterity. He was the proverbial cyclops in the land of the blind. There were few with scribal skills, and they were apparently largely employed in official capacities. The most notable were Simon Bradstreet and Increase Nowell, successively Secretary to the General Court during Lechford’s sojourn, neither of whose hands quite deserves the sniff of copperplate disapproval that came from Dr. Shurtleff’s nostrils!187 Moreover, Lechford alone in the Bay Colony had the legal training that made him a great deal more than a mere scribe.
Lechford landed at Boston on Wednesday, 27 June 1638. His first professional act was to draw a mortgage for John Jolliffe and William Chesebrough for a house and lot in Boston “next Mr. Cottons” to four Yorkshiremen—who may have been fellow-passengers with Lechford—as mortgagors, for one shilling paid by the mortgagees.188 The instrument was not dated in Lechford’s book, but it could not have been too long after his arrival. It was certainly before mid-October 1638. Lechford’s last act before leaving the Colony was the drafting of articles of apprenticeship for Paul Allestree with Valentine Hill of Boston, merchant, 19 July 1641.189 In all, during his three years of active practice in the Bay Colony, Lechford drew over 650 instruments. These included written pleadings, but the bulk were letters of attorney, articles (apprenticeship, factorage, copartnership, future bargain and sale, and the like), assignments, acquittances, releases, receipts, promissory notes, bonds, recognizances, mortgages, bills (of lading, exchange, good health for a vessel clearing), charter-parties, inventories, wills, affidavits, depositions, certificates under seal of the Colony, petitions, awards of arbitrators, statements of account, conveyances, exemplifications and copies, and business letters. The range is staggering.
The volume is no less remarkable. Assuming that Lechford had the Sabbath off, but allowing him no holidays—of which the Bay had few enough anyway—or vacations or even the luxury of illness, he drew and, if necessary, engrossed three instruments every four days on an average during a six-day working week. This was substantial even by English standards, whether the practicer was an attorney or solicitor drafting or merely a clerk or scrivener copying. In fact, as was the case with his English counterparts, Lechford’s work came in spurts. It was particularly heavy in the form of pleadings and other instruments related to litigation around the times of the quarterly sittings of the court of Assistants. It was always heaviest, unlike in England, in the summer months, for a reason peculiar to the Bay: these were the months in which shipping to Old England was most available, and the colonists needed to get their conveyances, letters of attorney, business letters, and so forth, aboard ship against the resumption of the English legal year in Michaelmas Term. For example, of the fifty-four instruments drawn in July 1639, thirty-five were destined for Old England of the sort one would expect, including a certificate, under the seal by Governor Winthrop to the Exchequer, of an affidavit in a customs matter.190
There was a genuine need for Lechford’s services as a legal draftsman and scrivener. The first month for which we have dated instruments in his book, October 1638, he produced thirty-nine pieces, including a good number of conveyances and bonds to keep covenants. This represented a backlog of legal work that was literally awaiting a lawyer’s advent. For the next few months his practice was much less spectacular, but picked up rapidly in the spring of 1639 to a crescendo in July. By the end of July 1639 he had drawn 178 instruments. Henceforth, his practice grew steadily, albeit with the spurts already indicated.
5. Passport for the Sparrow, 20 December 1638, from Thomas Lechford’s Scrivener’s Book page 29. Courtesy, American Antiquarian Society.
How good a draftsman was Thomas Lechford? Certainly he was better than anyone else in the Colony. But was he really competent in comparison to his counterparts in Old England? The answer must be an unqualified affirmative. To be sure, the formulary books of the age, particularly West’s Symboleography, would supply most of what he would need, and we can safely surmise that he had these with him.191 The eight non-pleadings precedents copied in the rear of his own book and probably dating from his English days were helpful. He demonstrated, though, an improvisational command of real property law usually associated with a barrister-conveyancer rather than with a mere scrivener.
Nowhere did Lechford better manifest his skill as conveyancer than in an early deed drawn by him, 18 October 1638, of a messuage with orchard and garden in Wokingham, Berkshire.192 The parties were both resident in Massachusetts. Lechford used Francis Moore’s brilliant device of lease-and-release with attornment to enable a new world vendor to convey to a new world purchaser real property in the old world without the complicated and costly expedients of retaining attorneys in the Common Pleas to execute a fine, or either to appear before a Berkshire JP and the clerk of the peace or else to move entry on the Chancery close roll to record a bargain and sale of freehold. Though the Statute of Enrollments (1536) required a record of conveyance by bargain and sale of freehold as effectual as the ancient conveyance by fine recorded in the feet of fines, a conveyance that did not require such record was an enormous help to parties fourteen hundred leagues from the Common Pleas office, the Rolls Chapel, and Berkshire. Moore’s lease-and-release with attornment, originally created to make possible secret conveyances, was here used for the perfectly legitimate end of simplifying a conveyance otherwise physically almost impossible or else unnecessarily costly. A reader of the Inner Temple would have done no better than this quondam solicitor of Clement’s Inn.
Neither West nor any other formulary would have provided the model for the passport and licence to trade, in Latin, granted under the Colony’s seal by Governor John Winthrop for his son Stephen and the master of the ship Sparrow for a voyage to Bermuda. The instrument is economical, the Latin is as good as the age produced, and the diplomatic is very sophisticated—even if the engrossing, assuming it was no better than the entry, was not very elegantly executed.193 Such a document was no job for an amateur scribbler, with French, Spanish, Dutch, and English sea-hawks poised to fall upon the poor little Sparrow. An English historian notices that the royal style is too much abbreviated and subsumed under the “&c”—“Angliae” should have been completed with “Scotiae, Franciae, et Hiberniae, Fidei Defensor, &c.”194 And he is a little surprised that the instrument is merely dated by the year Anno Domini and not by the regnal year of Charles I as well, both dates being appropriate for a passport. But then, this might merely indicate how sophisticated Lechford’s diplomatic was. The Bay Colony studiously eschewed any regal notes in its documentation. It only grudgingly included the royal style in such a document as this, where it could not very well be avoided since it was for foreign rather than domestic consumption. Even Visible Saints needed to implore regal protection when launched upon a sea of potential troubles.
Unusual also, and testifying to the range of Lechford’s learning, was the letter of attorney and proctorship for a testamentary matter in an English ecclesiastical court ex parte Mr. John Cogan.195 Such a document was more in the professional purview of an ecclesiastical notary or commissary’s officer than a common-law solicitor. Yet this is very characteristic of Lechford’s grasp. All of the instruments in his book indicate a sureness in drafting and a skill in diplomatic that goes beyond the merely clerical copying of models from formulary books.
Lechford complained bitterly, after a couple of years in the Colony, that he was “forced to get my living by writing petty things, which scarce finds me bread.”196 Whatever little his hyperbole proves about Lechford’s prosperity or lack of it, clearly he hoped for a bigger and a different practice from that more appropriate to a scrivener, no matter how learned that scrivener was. In fact, he did act upon a greater stage. His greatest contribution to the Bay Colony and to the development of its legal profession arose from an activity that technically was not only beyond the competence of a scrivener, but beyond that of a solicitor: pleading.
By Lechford’s day written pleadings had been in use for over a century. They had long since replaced the oral presentations of medieval counters which occasionally attained those heights of forensic brilliance revealed in the Year Books. Where once the oral pleadings had been the essence and almost the whole of the barrister’s task in court, written pleadings had become merely the beginning of the process of litigation, and a task requiring little learning and no forensic skill. Once pleadings were set down in writing, in Latin as entries on the plea rolls, for the vast majority of actions the standard pleadings to issue could be drawn by attorneys rather than by counsel.197 Increasingly, attorneys did just that. For Lechford’s generation, the illustrious Coke’s A Booke of Entries (1614) supplied a plethora of models for common-law pleadings, arranged alphabetically by actions, requiring little more than a command of Latin to be used effectively.198 The ambitious attorney—or solicitor—made his own extracts for pleadings models; those in the rear of Lechford’s book are good examples of such.
The fact that Lechford troubled to have these with him indicates that he had a use for them. He did. During his three years in practice in Massachusetts, he drew pleadings in thirty-five cases, in all but five of them, counts ex parte the plaintiff. Twenty-six of the cases were at common-law, eight were in equity, and the one remaining can be described only as a hybrid action in equity for account which depended upon Statute of Westminster II, c. 11, and which was tried by a jury.199 In two of the clear equity cases and in the hybrid case Lechford acted ex parte the defendant. The common-law causes were overwhelmingly those contemporaneously popular actions on the case of the kind that John Hatt made his living by in the London Guildhall: action on the case for assumpsit (10), conversion (2), words (3), negligence (1), enticing away an apprentice (1). The older forms of action were less numerous, notably account (3—not including the hybrid) and debt (3). There were only two common-law real actions, and one of those was mixed.
From his first declaration for a plaintiff in the mixed action in June 1639 to his last in an action on the case for conversion in June 1641,200 Lechford demonstrated a terseness and straightforwardness in common-law pleading that contrast favorably with the overly ornate and even architectonic structures one encounters on the plea rolls of the English common-law courts. In the one real action, Hett v. Tose, in June 1639, which was a collateral suit to an action on the case for assumpsit, Hett v. Shave, brought at the same quarter court, Lechford managed to make a perfect case to issue in about one hundred words.201 Even his longer declarations avoided prolixity and art. Since his book does not contain a single replication or rejoinder, there is clear evidence that the worst features of English pleading were not encouraged in the Bay. Yet, pleading beyond the first declaration of a plaintiff’s case and the plea in answer of the defendant could be avoided only if those pleas went to a simple issue and drew the issue clearly enough to be put to the jury. Lechford’s pointed declarations managed to do just that.
The actions in equity are particularly interesting, in part because equity was the arena in which the English solicitor was best studied and most used, and in part because three of the eight actions in equity in which Lechford drew pleadings were in foreign jurisdictions. Rucke v. Hatch, September 1639, was Lechford’s first equity case, and his bill for the plaintiff was to the Plymouth Colony’s Governor and Assistants. The case was that Rucke, Hatch, and one Meriam became joint undertakers in a ship bringing cargo from England to Charlestown. Rucke and Meriam were Bay Colony men, Hatch was from Scituate in Plymouth Colony. Hatch undertook the management of the enterprise. Rucke sued Hatch for overcharging him for his goods carried in the vessel and for charging Rucke for goods shipped by others, and for failing to account and pay upon the same. Rucke’s bill contained the usual equitable allegation that he could not prove the particulars as law required, and prayed that Hatch be enjoined to answer upon oath in writing and abide such “order & decree” as to the court seemed to stand “with equity and good conscience.”202 This bill was sent to the clerk of the Plymouth court on 26 August 1639. What is fascinating is that with it went a declaration in an action on the case for assumpsit ex parte Meriam against Hatch, in which Meriam claimed damages of £11 10s. for Hatch’s failure to account in the same venture. This plea was accompanied by an affidavit by Rucke testifying that he had seen in Hatch’s handwriting an acknowledgment that he owed Meriam £15 14s. in the venture.203 On 3 September 1639 the Plymouth court upon verdict of a jury awarded Meriam £5 14s. 2d. damages, plus costs, against Hatch.204 There is not a word in the records of the court about the bill in equity of Rucke v. Hatch. Perhaps the action in equity was primarily a shoring and discovery action to the case in assumpsit, with considerable nuisance value against Hatch. Conceivably, the Plymouth court, while it was quite prepared to go ahead with a suit in law, was not prepared to buy an action in equity by English-bill.
In the other two foreign actions Lechford drew the bill in one and answered for the defendant in another. In December 1640 he prepared the bill of a Salem gentleman against his uncle in Virginia for detaining property due the plaintiff as a testator and executor. This case, Stratton v. Stratton, was before the Governor and Captain-General of Virginia.205 The bill contained the usual allegations and prayers. The action in which Lechford answered, Foxwill v. Cogan, was before the Commissioners for the Province of Maine, also in December 1640. The plaintiff alleged that Cogan had forced him to enter an obligation.206 The answer contained the usual saving of the advantages of exception to the uncertainties and insufficiencies of the bill, and prayed that the obligation might stand, that he, the defendant, receive £15 for his loss, and that the plaintiff’s bill be dismissed with costs.
In all three of these foreign cases the pleadings that Lechford drafted were indistinguishable from such in the English Chancery, with all of the usual allegations and savings. Yet, interestingly enough, the five equity cases before the Bay Colony court were not always so formal: in one bill the usual allegation and reference to equity and good conscience were absent, and in an answer in another action there was no saving of exceptions.207 Lechford might well have been sensitive to a certain informality in the Bay’s courts, but unwilling to risk the slightest suspicion of irregularity in pleading in foreign courts.
In his equity pleading Lechford demonstrated the same terseness and pointedness that he did in common-law pleading—a welcome relief to one who has for decades struggled through overlong, multi-issue, English-bill pleadings. The question remains, though, how good a pleader was this solicitor become “counter”? Plaintiff’s declarations were not much of a test: as long as they met the requirements of certainty and sufficiency, were properly ordered, went to issue, and were appropriate to the action, they were soundly crafted. Lechford’s were. So, too, were his pleadings in English-bill, which were somewhat more of a test for a pleader. Save for a certain informality noted above, they left nothing to be desired.
The contemporary mark of a good pleader was, however, how good he was as a special pleader ex parte the defendant. Our evidence for Lechford may be slim, but it is sufficient. In Butters v. Stoughton, an action on the case for assumpsit in the Boston “small causes” court in October 1639, he executed a very neat confession-and-avoidance.208 But the real gem was a special plea that can only be described as brilliant and one worthy of the ablest barrister. In Bacheller v. Brocke, an action on the case for words, Lechford acted as the defendant’s “Attorney.” He drew a demurrer for the Boston quarter court of 3 September 1639 pleading that his client
ought not to be compelled nor is he any wayes bound to answere unto the pl[ain]t[iff] in this Court because the pl[ain]t[iff] hath not put in his declarac[i]on in writing to remaine upon Record.209
On 8 June previously, Lechford had submitted, “upon request,” five proposals for the better keeping of the records of the courts—and seeking in the process to be appointed notary public for the Colony. Lechford’s second proposition was
That every accion be declared in writing and the Defend[an]ts answer general or speciall as the case shall require be put in writing by a Public Notary before the cause be heard.210
Lechford’s demurrer for Brocke was from the heart! Yet it was struck out by Lechford in his book, indicating it was never submitted. The reason is not hard to find. At the General Court six days after the quarter court, the Colony’s recording system was decreed: inter alia, all judgments with “all the evidence” in the cases were to be recorded.211 However, no explicit provision was made for entering written pleadings such as Bacheller’s declaration. Lechford was probably already aware, when Bacheller’s Case came on, that Brockets demurrer would not fly.
The same Boston quarter court of 3 September 1639 threatened to put Lechford out of the business of pleading altogether. Among the last orders of that sitting was the following:
Mr. Thomas Lechford, for going to the iewry & pleading with them out of Court, is debarred from pleading any mans cause hearafter, vnlesse his owne, & admonished not to presume to meddle beyond what hee shalbee called to by the Courte.212
Lechford acknowledged that he had, in the case of William Cole and his wife, having been “retained” in the matter, spoken to the jury without the court’s leave, and conceded that this was “not to be done by the law of England.” But he argued it was not embracery, for he received no reward for it. And he pleaded extenuation because of “one or two seeming approbations of the like which he hath observed in other Causes here.” He also noted—pointedly—that “Some speeches of his, specially some involuntary and of sudden [interruptions?] . . . and zeal of speaking for his matters, may seem to offend such as have not been accustomed much to publique pleadings of advocates.”213 Here he touched the magistrates’ raw nerve. For it was precisely such advocacy, rather than anything said to the jury “without leave,” that brought down the court’s wrath.
The magistrates were indeed not “accustomed much to publique pleadings of advocates,” and they had no intention of becoming so. Significantly, the Reverend Nathaniel Ward’s stricture against paid advocates in clause 26 of the “Body of Liberties” of 1641 was an advance over the thinking of the magistrates on the matter of legal assistance to litigants, even involving advocacy. Ward at the invitation of the freemen, not the Governor and Assistants, preached at the General Court of 2 June 1641. He spoke vehemently against magistrates giving “private advice” in civil cases. Some of the magistrates, Winthrop tells us, opposed Ward’s stand for the commendable reason that the magistrates might be able to settle the dispute before it came to litigation, diverting the case if it was unjust or directing it in the right course if it was good. But they also opposed it “because we must then provide lawyers to direct men in their causes”; and “private advice” prevented “many difficulties and tediousness to the court to understand the cause aright (no advocate being allowed, and the parties being not able, for the most part, to open the cause fully and clearly, especially in public).”214
In this light clause 26 appears to have been a compromise between the magistrates’ strenuous opposition to allowing legal assistance in party-and-party litigation and the felt need for such assistance. Clause 26 permitted an unpaid advocate to one who “findeth himselfe unfit to plead his owne cause . . .” so long as the principal was present to answer “such Questions in person as the Court shall thinke meete to demand of him. . . .”215 Behind the magistrates’ concern was a twofold rationale. The first was that each man should plead his own causa, present his own case standing at bar. This was very much in keeping with the Puritan ideal of the responsibility of the individual to God, and its corollary, the individual’s responsibility to the civil authority. The second was that over-sophistication threatened the arcadian simplicity of the City Upon a Hill, which would be destructive of the commonweal by introducing not only irresponsibility but also the errors of meddling with things beyond the intellectual and spiritual capacities of the ordinary man of ordinary calling. Such meddling, in challenging the civil authority, challenged God, from whom the civil authority was derived and in whose service it was to be exercised.
The magistrates were fighting a losing battle, as the publication of Lawes and Libertyes in 1648 confirmed. Within a decade of the “Body of Liberties,” social and political realities had caught up with them, striking down Ward’s compromise clause 26 and, predictably, challenging the arcadian simplicity of the commonwealth and its magistratical order. Lechford was ahead of his time. He was also alone in possessing skills that not only seemed to challenge the simple order, but gave an unfair advantage to those whom he represented. It was questionable whether the magistrates’ solution—by which each magistrate might easily find himself in the untenable position of private advocate—was any improvement.
Yet the effect of silencing Lechford was not to deny him his practice, but rather to turn that practice into another, and ultimately much more beneficial, channel. Henceforth, Lechford’s clients pleaded by submission of written pleadings, filed in court and perhaps read out by the client. A score of Lechford’s written pleadings post-date his so-called “disbarment.”
How effective the unheard voice—but very visible hand—of Lechford could be is indicated by a written motion prepared for a client a year after the September 1639 contretemps. In Wolcot v. Lymon he drew a motion in arrest of judgment.216 What is riveting about this was that such a motion post-verdict and judgment was the real task of the barrister in English practice. There was no reason, however, why the client could not speak the words and file the motion himself. We do not know whether Henry Lymon’s plea, to stay judgment and execution “till he can produce his witnesses” then in England exonerating him upon the assumpsit, worked or not, but the motion was perfectly judiciable. Lechford’s clients could still enjoy the advantage of his advocacy without his saying a word in court. All hopes of arcadian simplicity were dashed. Any lawyer could do the same. Thomas Lechford was, for his day, a voice crying in the wilderness, but he showed the way to the development of a legal profession in the Bay Colony. Practice by written pleadings, economical and shorn of ornate invention, in English, not tied to the writ system—in short, the “reformed procedure” that did not come to full fruition in England until the nineteenth century—was introduced in a learned and professional way at the very outset in Massachusetts, thanks to Thomas Lechford.
III. Lechford’s Return to Old England
The 1639 “disbarment” of Lechford has led to the quite erroneous conclusion that he had no future in legal practice in Massachusetts. This is hard to reconcile with the fact that he remained the only man patently engaged in “lawyering” for fee for almost two more years, with his best year yet to come. The court’s reproof did not help his causa to become the Colony’s notary—an office not created until 1644 with the appointment of William Aspinwall, who was neither lawyer nor scrivener. But it did not hinder his doing what he had done before as both writer and pleader, and indeed his public employment by the General Court and the magistrates for writing postdates the court’s reproof. Ironically, one of those tasks was to transcribe “certain Breviats of Propositions delivered to the generall Court, for the establishing a body of Lawes . . .” which became the “Body of Liberties” of 1641.217
We should also be suspicious of any explanation for Lechford’s return to England in 1641 based upon the notion that he could not make a living in his practice. Trumbull takes too much at face value Lechford’s continuous keening about his financial position.218 The one note that rings true is in a letter to an unknown friend in England of 28 July 1640 stating that he was “kept from all place of preferment in the Common-wealth . . . ,”219 But Lechford’s further lament that he was “forced to get my living by writing petty things, which scarce finds me bread . . .” is correct only in how he made his living, not how well he made it. His income from “writing petty things” alone brought him, over the three years of his practice, more than £86, or an average of £28 14s. per annum. This is cash only; it does not include goods or services given in lieu of cash. His best year, January to December 1640, produced £37 in fees. He averaged almost exactly 2s. 6d. per instrument drawn, which was comparable to what he would have made in Old England. Moreover, his volume of business, at three instruments every four working days on an average, was also good by English standards.220 Since his rented quarters from September 1639 to September 1640 cost him £5 per annum (about one-sixth of his income), his “bread” was rather better than an occasional weevily crust!221 He and his wife, who apparently joined him in 1639, had a maid and ate the “best suger.” He sported a “silver laced coate and a gold wrought cap” and his wife a “tuft holland” waistcoat in 1639 and a new gown in 1640. There was beer for his table, and he smoked Spanish tobacco from Venezuela, the most expensive at the time.222 Moreover, in September 1640 he was able to buy a house and garden in Boston from a tailor who removed to Connecticut. Whatever Lechford’s status before, he was no longer, as Trumbull erred in supposing, “not even a householder; in the eye of the law . . . merely a ‘transient.’”223 In view of the fact that the Dedham schoolmaster’s salary at the time was £20 per annum and Henry Dunster’s salary as “Professor” at Harvard was £50,224 Lechford’s average annual cash income of almost £29 was well above subsistence. True, he along with everyone else in the Bay felt the tight-money pinch of the famous crash of 1641: his cash income from January through July—the latter, his last month, was light because he was winding down business—was only a little over £8. In common with his neighbors he increasingly took his fees in truck rather than cash from late 1640 to his departure in August 1641. Over all, Lechford appears to have been a true rarity, a lawyer who disproved the Marysville Theorem, as we call it in California, that if there are two lawyers in town they are both millionaires, if one, he is a pauper!225
Neither should we conclude that Lechford’s growing disenchantment with the rule of Visible Saints, his forthright public statements orally and in writing to the magistrates and the ministers that the only correct ecclesiastical polity was rule by bishops in the Apostolic Succession—“I disclaime Parker, And encline to Hooker, Iewel, as to government”226—loosed upon him a torrent of persecution that washed him out of New England. Lechford as ecclesiologist is another study in itself, and one well worth doing, but it cannot be done here. Suffice it to say, that in every scrape he had with civil and ecclesiastical authority in religious matters, he came away without official condemnation and even with heightened respect in the eyes of some of his adversaries. In September 1640 he stood into great danger. He put three questions to the church elders in Boston that went to the roots of congregational polity and orders.227 At the December quarter court he was summoned to appear and admonished not to meddle with religious controversies but to “attend his calling,” the law.228 Lechford’s account of what happened at that court indicates that his honesty and conscientiousness disarmed wrath:
I never intended openly to oppose the godly here in any thing I thought they mistooke, but I was lately taken at advantage, and brought before the Magistrates, before whom, giving a quiet and peaceable answer, I was dismissed with favour, and respect promised me by some of the chiefe for the future.229
Lechford was genuinely irenic. This attribute was evident even in his stout criticism of the Colony for its anti-monarchical sentiment and anti-episcopalian polity levelled in his pamphlet, Plain Dealing: or News from New-England, published a few months after his return to England. There is no bitterness in the tract; there is a handsome compliment paid to the founding-fathers of the Massachusetts Bay Colony:
And I think that wiser men then they, going into a wildernesse to set up another strange government differing from the setled government here, might have falne into greater errors then they have done.230
Trumbull found it difficult to explain why it was that Lechford was suffered to remain in New England once it became clear how disaffected he was to the ecclesiastical order so important to the magistrates and ministers. If Trumbull detected signs “that the founders of Massachusetts were not incapable of the exercise of toleration, even though they might not give it a place among the virtues,” he was too quick to credit that as explanation.231 That Lechford was endured at all had less to do with any genuine sentiment for “toleration” by magistrates and ministers than with the fact that, if he was “obnoxious” to the elders, as Trumbull correctly noted, he was not to the magistrates, as Trumbull erroneously surmised. It was not that Lechford’s “calling”—the law—made him “unwelcome.” Rather, it was his calling that persuaded the magistrates to tolerate him. Lechford remarked that though the General Court was willing to bestow employment on him, the magistrates told him “they could not doe it for feare of offending the Churches, because of my opinions.”232 The magistrates recognized and appreciated the value of Lechford’s legal services and were loath to lose them merely because Lechford’s opinions affronted the ministers. The episcopalian solicitor was not the only bone of contention over which magistrates and elders snapped at each other in these years.
What the civil authority could not do was to make Lechford a freeman and hence eligible for office, as notary public. The churches denied him the Sacrament, and therefore being no churchman he could not be made free of the godly commonwealth. Yet it was not the economic consequences of not being a churchman that drove Lechford home. It was the spiritual consequences of being denied the Sacrament that effected his departure. Lechford was a profoundly religious man, a devoted adherent of the Anglican Church. There is a poignant note in Plain Dealing in Lechford’s description of the administration of the Sacrament in the Boston church:
Once I stood without one of the doores, and looked in, and saw the administration: Besides, I have had credible relation of all the particulars from some of the members.233
He was excluded from the exercise of faith, though he piously desired it. Writing to an unknown English friend in December 1640, immediately after the magistrate had “dismissed” him “with favour,” he said:
Never since I saw you have I received the Sacrament of the Lords supper. I have disputed in writing, though to my great hinderance, in regard of outward things, yet blessed be the Lord, to my better satisfaction at the last.234
Having achieved “better satisfaction at the last,” Lechford took ship for home on 3 August 1641. He was convinced that the gathered churches in the Bay Colony were in deep error because they lacked the authority of a ministry in the Apostolic Succession, that they were in anarchy and confusion. Surely these were not his tenets when he came in 1638. But his “slender” observations, queries, and experiments had brought him to a vigorous episcopalian and monarchical position which would not permit him to remain in Massachusetts.235 Perhaps he was like some people of our day who, enamored of “people’s democracy,” have passed a sojourn behind the Iron Curtain only to return to the United States convinced of its superiority, Tightness, and even righteousness.
He was not, however, unique in his own day in his own right. The 1640’s were a time that tried men’s souls and their loyalties. By November 1641, when he arrived in England, episcopacy was under hot attack in the Commons, John Pym’s grasping for control of the King’s power to control the executive and the army had converted episcopalians to royalists, and the Commons was in process of passing its revolutionary Grand Remonstrance, which carried in the House on 22 November by a mere eleven votes. By the time Lechford dated the proheme of Plain Dealing from Clement’s Inn, 17 January 1642, Pym’s Parliamentarians were only a month away from excluding the bishops from the Lords and gaining control of the militia, and the King from preparing to regain the fortress at Hull from Parliamentarian supporters. Civil war was inevitable. Thomas Lechford, solicitor, found himself in that goodly company of those who henceforth would be called royalists.
Though the Royalists would meet the Saints on the fields of Edgehill, Marston Moor, and Naseby, Lechford would not be among them. He died shortly after publication of Plain Dealing. The Reverend John Cotton’s uncharitable and canting obituary of Lechford proclaimed a sad truth:
but see the wise hand of God disappointing his [Lechford’s] ends; When he came to England the Bishops were falling, so that he lost his friends, and hopes both in Old-England and New . . .236
A more appropriate epitaph, both more just and more charitable, would be that Lechford had left his mark, along with his hopes, in New England as its first lawyer.