The language of the law. Part Latin, part Anglo-Saxon, all confusing.
I was at a family reunion in Mitchell County, North Carolina, some years ago when a very distant cousin casually informed me that our common ancestor — David Baker (1749-1838) — had also been a lawyer. I don’t recall today what my exact words were, but my response had to have been something brilliant and erudite, along the lines of “Say what???”
“Oh, yes,” he said. “The census proves it.”
Now I knew good and well that David Baker had never been a lawyer, but not having the entire U.S. census at my fingertips as we sat outdoors in Spruce Pine without a hint of wireless access, I said I’d have to look into that. And when I did, I saw just where my cousin had gone wrong.
David Baker was born in the brand new Virginia county of Culpeper1 on 3 June 1749.2 He served as a corporal in the 3rd Virginia Continental Line, serving from 1776 to 1778,3 including that terrible winter at Valley Forge.4 When he was discharged, David followed his family to the brand new North Carolina county of Burke5 and settled there.6 He was recorded in the Burke County census from 1790 through 1830,7 and therein lies the tale.
On the U.S. 1820 census, David Baker was recorded as “David Baker Esq.”8 and, of course, these days, when you see “Esq.” after somebody’s name, you know that person is a lawyer, right? In fact, in some states, if you try to use “Esq.” and you’re not a lawyer, you’re likely to end up in some very very hot water. In Arizona, using “Esq.” if you’re not an attorney is unauthorized practice of law.9 Florida has even prosecuted a retired out-of-state lawyer for using the term when she wasn’t admitted to practice in Florida; she ended up in pretrial diversion and had to agree to stop calling herself “esquire.”10 Even the U.S. District Court for the Eastern District of Pennsylvania has held that “‘Esquire’ is a designation accorded only to duly-licensed attorneys.”11
But the operative phrase here is “these days” — “Esq.” or “Esquire” means lawyer these days. What my cousin missed is that a term can mean something entirely different today from what it meant at the time it was used. And that’s what the problem was with David.
My cousin simply didn’t understand that “esquire” is a very old word. In English law, it was a title of dignity (meaning “rank”).12 An esquire ranked above a gentleman but below a knight. There and in early America, however, it was also a title of office. The people (men, really; women didn’t hold office in the early days) who served in public capacities were also called “esquire.” Barristers at law were included… and so were sheriffs, sergeants at arms and — among others — justices of the peace.13
Now think about it. You’re in Burke County, North Carolina. It’s 1820. The county has only existed since 1777 and the county seat wasn’t even established until 1784.14 The 1820 census for all of Burke County only takes up 57 pages and it shows there weren’t but 2700 males aged 16 and over in the entire county. And it also lists at least 12 men with “Esq.” after their names.15 Let’s be reasonable. Twelve lawyers in that county would have starved. (I know you all think there are too many lawyers today, but hey! be nice!)
I mean, really. Who’s gonna hire ‘em? “I’m a farmer, I can’t read, I can’t write, I live 20 miles from my nearest neighbor, so I think I’ll just sashay down 60 miles or so to the county seat and hire me a lawyer” doesn’t seem all that likely, does it?
Nope. David wasn’t a lawyer. What he was, was a justice of the peace. He was sworn in on 23 January 1797, at the start of the January session of the Burke County Court of Pleas and Common Sessions16 and served as a justice of the peace in Burke County until the part of the county he lived in was cut off into the newly formed Yancey County in 1833.17 David died 15 September 183818 and is buried in the Old Cemetery19 in Bakersville, NC, the town that bears his and his family’s name.
- “Formation of Culpeper County,” Virginia Magazine of History and Biography, 27 (July-Oct 1919): 377-378, setting out the statute of 23 March 1748. ↩
- Josiah Baker Family Bible, births page 1, col. 1 (publication data unavailable); photographed 2002, digital images in the possession of JG Russell). ↩
- Affidavit of David Baker, 26 September 1832; Dorothy Baker, widow’s pension application no. W.1802, for service of David Baker (Cpl., Capt. Thornton’s Co., 3rd Va. Reg.); Revolutionary War Pensions and Bounty-Land Warrant Application Files, microfilm publication M804, 2670 rolls (Washington, D.C. : National Archives and Records Service, 1974); digital images, Fold3 (http://www.Fold3.com : accessed 7 Jan 2012), David Baker file, pp. 3-6. ↩
- Friends of Valley Forge Park, Valley Forge Legacy : The Muster Roll Project, entry for David Baker, 3rd Virginia Regiment (http://valleyforgemusterroll.org/muster.asp?id=VA32575 : accessed 7 Jan 2012). ↩
- David Leroy Corbitt, The Formation of the North Carolina Counties 1663-1943 (Raleigh : Division of Archives and History, North Carolina Department of Cultural Resources, 1987), 42. ↩
- Affidavit of David Baker, Fold3 David Baker file, p. 5. ↩
- (a) 1790 U.S. census, Burke County, North Carolina, p. 91 (penned), col. 1, line 1, David Baker; digital image, Ancestry.com (http://www.ancestry.com : accessed 7 Jan 2012); citing National Archive microfilm publication M637, roll 7; imaged from Family History Library microfilm 568,147. (b) 1800 U.S. census, Burke County, North Carolina, p.730 (stamped), line 7, David Baker; digital image, Ancestry.com (http://www.ancestry.com : accessed 7 Jan 2012); citing National Archive microfilm publication M32, roll 29; imaged from FHL microfilm 337905. (c) 1810 U.S. census, Burke County, North Carolina, p. 23 (penned upper left), line 9, David Baker; digital image, Ancestry.com (http://www.ancestry.com : accessed 7 Jan 2012); citing National Archive microfilm publication M252, roll 39; imaged from FHL microfilm 337912. (d) 1820 U.S. census, Burke County, North Carolina, population schedule, p. 55 (stamped), line 20, David Baker Esq.; digital image, Ancestry.com (http://www.ancestry.com : accessed 7 Jan 2012); citing National Archive microfilm publication M33, roll 83. (e) 1830 U.S. census, Burke County, North Carolina, p.198 (penned), line 2, David Baker; digital image, Ancestry.com (http://www.ancestry.com : accessed 7 Jan 2012); citing National Archive microfilm publication M19, roll 118; imaged from FHL microfilm 18084. ↩
- 1820 U.S. census, Burke Co., N.C., pop. sched., p. 55 (stamped), line 20, David Baker Esq. ↩
- Arizona Supreme Court, 17A A.R.S. Sup.Ct.Rules, Rule 31 (http://www.supreme.state.az.us/cld/pdf/Rule%2031%20FINAL%20for%20Code%20Book.pdf : accessed 7 Jan 2012). ↩
- Jason Geary, “Deal Lets Atheist Leader Ellenbeth Wachs End Criminal Cases,” The Ledger (Lakeland, FL), online edition, 25 Aug 2011 (http://www.theledger.com/article/20110825/NEWS/110829629 : accessed 7 Jan 2012). ↩
- Patton v. Scholl, 1998 U.S. Dist. LEXIS 17662 (E.D.Pa. Nov. 6, 1998). ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 367, “dignity.” ↩
- Ibid., 433, “esquire.” ↩
- Corbitt, Formation of North Carolina Counties, 42. ↩
- 1820 United States Federal Census database at Ancestry.com (http://www.ancestry.com : accessed 7 Jan 2012), line by line review of entries for Burke County, N.C. ↩
- Minutes of 23 Jan 1797, Burke County, North Carolina, Court of Pleas and Quarter Sessions, Minute Book July 1795 – Oct 1798, Part II, p. 428; call no. C.R.014.301.2; North Carolina State Archives, Raleigh. ↩
- Corbitt, Formation of North Carolina Counties, 239. ↩
- Josiah Baker Family Bible, deaths page 1, col. 1. ↩
- Old Bakersville Cemetery (Bakersville, Mitchell County, North Carolina; on Bakersville Memorial Cemetery Road, northwest of its intersection with Duck Branch Road, Latitude 360005N, Longitude 0820920W), David Baker marker; photograph by J.G. Russell, 14 Jun 2003. ↩