Wednesday, December 10, 2014

What it was REALLY like in the courts a couple of centuries ago!

By Warren Moise

It seems as if I have information coming at me from 10 different places the instant I walk into my law office each morning. Oh, to practice law back in the day when there was no pressure. But was it really better then? Let’s look at the lives of trial lawyers in the early 1800s and see just how good they really were.

South Carolina in the early 1800s

Ok, pretend you’re a young attorney and solicitor-in-equity in the early 19th century. Charleston is still the gravitational center of the legal profession. However, the upstate is growing, and Charleston lawyers now for the first time are a minority of the new attorneys enrolled to the practice of law.
The Forensic Club (one day, it will be reborn as the Charleston School of Law) has briefly become the state’s seminal law school and the first in the South. But most students don’t go to law school. Instead, they “read the law” in attorneys’ offices. It’s a good deal for the lawyers because the students actually pay them, the usual rate being about 100 guineas per year for a three-year term. A single law firm might have numerous law students, so with space limited, letters of recommendation are a plus. Charleston attorney James L. Petigru has so many students that he recently built a new law office at 8 St. Michael’s Alley.
You hear some of the older lawyers talk about the Constitutional Convention of 1787. They were alive when the Constitution was ratified. There is much respect for the elder attorneys who actually fought in the Revolution. In fact, there is palpable angst when one judge with a distinguished war record is about to be removed from the bench; he has a debilitating drinking problem, but who wants to cast stones at a Revolutionary hero?
Despite unanimous opposition by South Carolina’s delegates at the Constitutional Convention in Philadelphia to creation of any federal trial courts, the district court is now operating quite well. It doesn’t have the heavy caseload of the state courts, of course. Much of its docket involves admiralty matters. The U.S. Court convenes in Charleston at 23 Chalmers Street in a rented two-story building, and sometimes in Columbia or Greenville. Court proceedings at Chalmers Street often must be stopped because jurors can’t hear the judge, lawyers or witnesses above the clattering wagons bumping down the cobblestone street. On warm days, the scent from the stables next door captures jurors’ attention more so than the lawyers’ arguments. According to a recent article in the Charleston Daily Courier, jurors complain that "[j]ury rooms are destitute of every convenience" and accommodations for the court officers are inadequate. It will be this courtroom in 1860 where Judge A.G. Magrath (pronounced “ma-GRAW”) will send shock waves across the United States by closing the federal court in South Carolina’s first break from the Union, predating the Secession Convention.

The Bar: politics and parties

The South Carolina Bar Association is in its infancy. Organized in the federal courtroom on August 23, 1826, the Bar Association is focused on two things —creating law libraries in Charleston and Columbia, and mixing socially. The library is needed so judges have access to modern, up-to-date treatises, digests and cases. Students and young lawyers like yourself also need law books, which are expensive. The social part of the Bar is just as important a priority. After the Bar’s first anniversary meeting at City Hall, the lawyers trooped over to the Hibernian Society for some splendid entertainment. The toasts spoke volumes about the Bar. The first toast was “To the science of the law: always appreciated in proportion as it is understood.” Visiting Senator Martin Van Buren toasted, “To the Bar of South Carolina: from the dawn of the revolution to the present day, it has been abundant in the production of orators, patriots, statesmen and soldiers.” The U.S. Supreme Court similarly was acclaimed. This bonhomie will be good while it lasts, which isn’t long. Eventually, this Bar Association will fall victim to the nullification controversy, disappear and be forgotten. In fact, when the Bar is reformed after the Civil War, most attorneys in South Carolina are amazed to learn that this earlier association ever existed.

Lawyers’ biggest problem

Every attorney realizes that there’s a problem with the practice of law, so basic that it practically dwarfs all others—the law needs to be organized and codified. Legal research is time-consuming and maddening. For example, the law in 1811 required the court of appeals’ opinions to be recorded. Opinions decided in Charleston were to be stored in Charleston, and those decided in Columbia to be kept there. However, when the court of appeals met in Columbia, the judges couldn’t remember their decisions from Charleston (and vice versa); this meant that new opinions had to be postponed until precedent could be researched.
Federal records, including documents dating back to the state’s earliest history, are in sad shape. Stored haphazardly in the clerk of court’s office on the first floor of 23 Chalmers Street, they are scattered and beginning to deteriorate.
Codification is the big buzz word. This is not just true of the statutes but of the common law too, with the need for a comprehensive American digest being particularly acute.
A set of modern rules of procedure is needed to regulate the litigation explosion as the state grows. The judges have come up with a plan and issued orders setting forth a few rules. Later these rules are extended by subsequent court orders and in 1836 are compiled into a 36-page booklet entitled Rules of the Courts of Sessions and Common Pleas, of the Court of Equity, and of the Court of Appeals of South Carolina published by W. Riley, 110 Church Street in Charleston.

Dressing up for court

As a young, hotshot lawyer and solicitor-in-equity, you must look the part. Court rules require the “habit of the gentlemen of the bar [to] be black gowns [i.e., robes] and coats.” The clerk of court had to wear a black robe too. The sheriff was under orders from the judiciary to enforce the rule. On the other hand, the sheriff had his own dress code. He had to be decked out in a black coat, a cocked military hat and a sword.

Riding the circuit

Carl Benz will not be born for a decade, and his Mercedes Benz will not be on the market for quite some time. Equestrian travel, including buggies and horse-drawn coaches, is the norm. Older lawyers sometimes complain vociferously of painful backs when they arrive at court, having ridden for hours in saddles devoid of lumbar support. The court of appeals is aware of the dangers of riding the circuit. That’s why sheriffs are asked to escort circuit judges and chancellors back and forth to their lodgings during court terms.
Travel between circuits is difficult for other reasons. Greenville and Spartanburg are not connected to the lower state by railroads. Some towns are literally sealed off from civilization when rivers rise, flooding the roads. Runaway horses can throw a rider. Wild animals and highwaymen are potential dangers. Everyone has heard stories of circuit-riding lawyers injured when their horses stumble over fallen logs. At a meeting in the Richland District Courthouse, you heard it said that Judge Frost’s trunk recently was lost when it fell off the back of the stagecoach en route from Greenville to Laurens Court House. The poor judge had to hold court for a week wearing the same clothes in which he’d arrived.
On the other hand, travel is not always bad. Riding horseback through the countryside on a warm spring day can be glorious. Sometimes the judge and trial attorneys travel together from one town to another, occasionally stopping for lunch, claret and conversation at a nice grassy spot en route.
Court week, especially in the rural counties, is a great social event. The circuit judge or chancellor is treated like royalty by locals. Local dignitaries sometimes are allowed to come inside the courtroom bar. Hawkers, including those who sell patent medicines fortified with opium or alcohol, set up outside the courthouse. Almost a festive atmosphere prevails.

Crime and punishment

It’s not uncommon to walk onto the courthouse grounds and pass a prisoner with his head and arms in stocks. It might possibly be someone you know (but hopefully not a relative). Whipping is a common punishment but is so humiliating that afterwards, the whipped man usually leaves town.
Defendants have it tough. In the trial and court of appeals’ courtrooms is a lonely European-style prisoner’s dock where defendants sit or stand.
As a law student, your supervising attorney taught you the black-letter evidence rule barring a criminal defendant from testifying on his own behalf at trial. English evidence writer (and well-known eccentric) Jeremy Bentham excoriates this rule. Condescending Harvard Law Professor and Supreme Court Justice Story harrumps and criticizes Bentham for his views. You agree with Bentham that the rule is stupid, but who are you to contradict Justice Story? Moreover, this type of exclusionary evidence rule is accepted dogma and will never change.
You are amazed at how many crimes are punishable by death. Why, petty larceny is a capital offense for goodness sake! A pick-pocket can be put to death if convicted. Therefore, it wasn’t surprising when you read that the Ninety Six grand jury requested that horse stealing be made a capital offense for the first conviction. In fact, 165 crimes are on the record books as capital offenses in 1813. Lucky defendants get benefit of clergy for the first conviction —that is, he’s branded instead of being put to death.
Justice is not only severe, it’s swift—and I mean swift! When your client’s conviction is affirmed by the state court of appeals, you don’t consider appealing to the U.S. Supreme Court. It has no appellate jurisdiction in criminal cases. Instead, he may expect to stand in the court of appeals’ dock on Monday hearing the judge tell him that his conviction is affirmed (ending with the prayer “and may God have mercy upon your soul”) then swing from a tree in nearby Potter’s Field before the weekend.

Tunc pro nunc?

Ok, back to the present. Now, do you really want to ride horseback from Columbia to Greenville for court with that bad back of yours, or is your BMW convertible with its lumbar support looking a bit better? Would you rather have your client face death for a petty larceny conviction? Well, maybe, maybe not. I think I'll stick with the way things are today. How about you?

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