Page 18 - Delaware Lawyer -Spring 2021

FEATURE | PRACTICING LAW IN A NEW NATION
library in 1794. The Sussex collection also contains Powell’s extensive writ- ings on devises, mortgages, and the creation and execution of powers.34 Powell was probably a student of anoth- er noted legal writer, Charles Fearne, as Powell edited Fearne’s work on Contin- gent Remainders and Executory Devis- es. That work by Fearne is said to have “done more than any other to preserve the Rule in Shelley’s Case as black let- ter law, as distinguished from a rule of construction.”35 A copy of the fourth edition of Fearne’s work on remainders is in the Sussex collection.
In addition to Powell’s seminal work on contracts, the collection also contains Samuel Comyn’s influential treatise on that topic: A Treatise of the Law Relative to Contracts and Agree- ments Not Under Seal. The work was first published in England in 1807; the version in the Sussex collection was published in Flatbush, NY soon there- after (1809) and consists of two vol- umes. Another notable treatise of the era was Francis Williams Sanders’ work on trusts, An Essay on the Nature and Laws of Uses and Trust, which made its way to Sussex.
There are also several volumes de- voted to the law of evidence.36 One was published in Philadelphia in 1807. The work itself, a Compendium of the Law of Evidence, had been published in London in 1801. The author is Thomas Peake, a British lawyer who was also for a time a reporter of cases from the Kings Bench.37 A second work on the law of evidence is S. March Phillips’ Treatise on the Law of Evidence, which was published in England in 1814 and was the standard textbook on evidence in the 19th century. The last American edition of Phillips’ treatise was pub- lished in New York in 1868. There are two volumes by Phillips in the Sussex collection, both printed in America: Volume 1 was printed in New York in 1816 and Volume 2 was printed in Boston in 1822. Interestingly, a hand-
written note in Volume 2 records the death of Delaware statesman John M. Clayton in 1838.38 In addition to these two works, the final volume of Viner’s Abridgement (discussed above) is de- voted solely to the law of evidence.
The 19th century’s pre-eminent work on domestic relations law — Tap- ping Reeve’s Law of Baron and Femme (1816) — is also part of the collection, represented by an 1846 edition pub- lished in Burlington, VT and acquired by John Houston. Reeve founded one of the nation’s earliest law schools — the Litchfield Law School in Con- necticut — and served as chief justice of Connecticut. He taught law to Vice President Aaron Burr and married Burr’s sister.39
The Practical Treatise of the Law of Vendors and Purchasers of Estates, authored by Edward Burtenshaw Sugden, also known as Lord St. Leon- ards, originally printed in London, ap- pears in the collection in its first Ameri- can edition, published in Philadelphia in 1807. Sugden, of humble origin, published this treatise — his best- known work — even before he entered the Middle Temple. He was known for his remarkable rise through the halls of Parliament, and during his career he served as Kings Counsel, Solicitor Gen- eral, Lord Chancellor of Ireland, and eventually Lord Chancellor of Great Britain. He was keenly interested in law reform. But perhaps Sugden’s most unusual contribution to the law came after his death, when his will could not be located. Eventually the Court of Chancery accepted his daughters’ recollections about the contents of the will, thus establishing the principle that the contents of a lost will may be estab- lished by secondary evidence.40
The variety and sophistication of the Sussex library is indicated by the inclusion of a treatise on medical ju- risprudence and one on international law. Elements of Medical Jurisprudence
by Theodric Romeyn Beck, a physician from western New York State, is con- sidered the first significant American book on forensic medicine.41 The two- volume edition in the Sussex collection bears the name of Peter Robinson.
A book that deals with international law, The Law of Nations or Principles of the Law of Nature Applied to the Con- duct and Affairs of Nations and Sover- eigns — usually referred to as The Law of Nations — by M. DeVattel, is said to have had great influence over the American founders. Benjamin Franklin is known to have had a copy. And apparently George Washington bor- rowed a copy from the New York Society Library on October 8, 1789 and failed to return it. When Mt. Vernon, unable to locate the original volume, returned an identical copy in 2010, the Society was kind enough to waive the late fee.42 DeVattel was a na- tive of Neuchatel (now Switzerland). His book was translated from French into English and printed in Dublin in 1787. The Sussex book is a 1793 edition.
A list of the treatises in the Sussex library is available at www.delaware barfoundation.org/delaware-lawyer- publication.
Practice Manuals:
It is apparent from the Sussex li- brary that lawyers 200 years ago had need of practical as well as theoreti- cal guidance. Perhaps even more so, since generally they were what is now known as sole practitioners and had no associates to assist them. But the dif- ficulties they faced stemmed also from the complexities of British pleading, which took Americans some time to unwind. The Sussex library contains 15 volumes devoted to instructing law- yers on the finer points of law practice. These manuals are in many respects precursors to today’s collections of rules and forms, but are far broader. As one guide puts it, the manuals contain a veritable “hodge-podge of materi-
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