Page 20 - Delaware Lawyer -Spring 2021

FEATURE | PRACTICING LAW IN A NEW NATION
discusses, inter alia, the jurisdiction of the different courts, the respective roles of persons involved with the criminal justice system, the elements of criminal offenses, the processes for apprehend- ing and bringing defendants before the court, as well as discussions of criminal trials, the verdicts, and appeals.
The Crown Circuit Compan- ion, compiled by W. Stubbs and G. Talmash, is another guide through the handling of criminal matters and the duties of those involved in the system. The companion is dated 1762; the third edition of the work is in the Sussex library. This book contains a mystery: it bears a written signa- ture of “David Hall”. David Hall was Governor of Delaware from 1802 to 1805 and his sister was the second wife of James Patriot Wilson, the originator of the Sussex collection. One wonders if this book is from Governor Hall’s library. However, a well-known book- seller in Philadelphia was also named “David Hall” and a label from his business appears in the book, indicat- ing it was the latter David Hall who added his signature.
The Conductor Generalis was a handy reference for those serving as Justices of the Peace — an important element of the British and American legal systems47 — and was published in Woodbridge, NJ in 1764. The work was edited to suit the needs of the American colonies. The book’s first owner, a David Train, affixed his name to the volume in 1776, making it one of the earliest and probably most used books in the Sussex library.
Other manuals give guidance to lesser public officials. Back in the era of Oliver Cromwell (c. 1650), William Sheppard was turning out numerous books giving guidance to constables, overseers of the poor, supervisors of “high-wayes,” church wardens and other officials whose day-to-day tasks made the country of England func- tion. He also wrote books to guide jus-
tices of the peace. Although Sheppard was trained in the Middle Temple, his practice was based in the country un- til he was called to London to serve in Cromwell’s administration.48
Of the American books in the Sus- sex library, one of the more intriguing is John Kilty’s The Land Holders Assis- tant, which deals with the early history of the Maryland colony and the land system used in that era. Kilty’s father was an English ship captain who even- tually settled his family in Annapolis. His son had a distinguished military career in the American Revolution, ris- ing to the rank of Brigadier General.49 Kilty’s knowledge of early Maryland history and documents came from his service as Register of the Land Office for the Western Shore of Maryland. It is interesting that this book is found in a Delaware library, but given the long unsettled state of the Delaware- Maryland border, it may have provided valuable guidance in land disputes.
A listing of the practice manuals is available at www.delawarebar foundation.org/delaware-lawyer- publication.
The Delaware Case Book:
It is impressive that more than 200 years ago, lawyers in Sussex County, far from the new cities developing in America and at a great distance from the “mother country” of Great Brit- ain, had ready access to the decisions of British courts and, eventually, deci- sions of the U.S. Supreme Court and a scattering of state courts. But what about the decisions that really mat- tered to them in their day-to-day prac- tice: the decisions of the local courts before whom they appeared?
Many lawyers solved this problem by keeping their personal, meticulous accounts of cases heard and decided in their local courts. These accounts were often shared with other attorneys and were used in lieu of printed reports.
James Patriot Wilson kept such a re-
cord. Wilson’s compilation — known as “Wilson’s Red Book” — recorded in his hand cases heard in the Dela- ware courts of the day: the Court of Common Pleas, the Court of Quar- ter Sessions, the Court of Oyer and Terminer, the Court of Chancery, the Supreme Court, and the High Court of Error and Appeals. Wilson’s book is a small notebook, bound in red, and contains 390 pages in which he wrote summaries of the cases heard and de- cided in these courts.
Wilson’s original book — which bears the title, in Wilson’s own hand, James P. Wilson’s Notes of Cases. Writ- ten without revision or correction from 1792–1800 — now resides in the Spe- cial Collections of the University of Delaware Library.50 In 1943, selections from the “Red Book” were included, along with summaries of cases record- ed by other early Delaware lawyers, in a book edited by Professor Daniel Boorstin of the Harvard Law School.51 In discussing these early accounts and their importance to the practicing bar, Professor Boorstin wrote:
“Until 1837, when the first vol- ume of Harrington’s Reports was published, the Delaware lawyer had not a single volume of printed reports for his own state. Although he had the Eng- lish reports, and in the earliest decades of the 19th century was increasingly using the reports of other states of the Union, this lack of printed precedents would seem to have left the common- law lawyer in Delaware without his most important tools. . . . How did Delaware develop its own common law during this period? The answer is, of course, that Delaware lawyers were not left to rely entirely on foreign precedents.”
In this effort, the notebooks of in- dividual lawyers — such as the “Red Book” — were of vital importance.
18 DELAWARE LAWYER SPRING 2021